BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chairwoman S
2005-2006 Regular Session B
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SB 1128 (Alquist) 8
As Amended March 7, 2006
Hearing date: March 15, 2006
Government and Penal Codes (URGENCY)
JM/AA:br
SEX OFFENDERS
HISTORY
Source: Author
Prior Legislation: None equivalent to this bill; others on the
same general subject are too numerous to list
Support: Santa Clara County District Attorney's Office; Peace
Officers Research Association (PORAC); Office of the
Attorney General; California Police Chiefs Association;
Community Solutions; California District Attorneys
Association
Opposition:one individual
KEY ISSUE
SHOULD THE "SEX OFFENDER PUNISHMENT, CONTROL AND CONTAINMENT ACT OF
2006" BE ENACTED, AS SPECIFIED?
PURPOSE
The purpose of this bill is to enact the "Sex Offender
Punishment, Control and Containment Act of 2006," which
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includes the following provisions: 1) creates a new crime for
child luring that includes within its scope police sting
operations, as specified; 2) creates a new 25 to life crime for
specified sex crimes against young children, as specified; 3)
creates a new loitering statute prohibiting sex offenders from
loitering around school grounds and other places where
vulnerable persons congregate, as specified; 4) increases and
recasts penalties for child pornography, as specified; 5)
states legislative intent to establish child safety programs;
6) requires each county to establish a SAFE team, as specified;
7) requires recidivism risk assessments for all registered sex
offenders, as specified; 8) enhances parole and probation
provisions for sex offenders, as specified; 9) extends parole
periods for all violent sex offenses; 10) imposes indeterminate
terms for sexually violent predators, with minimum
constitutional requirements; 11) proposes largely technical
sentencing reforms concerning specified sex offenses; 12)
requires the Department of Justice to update the Megan's Law
database and provide increased information on the Megan's Law
Web site; 13) makes changes to sex offender registration
provisions, as specified; and 14) enhances the information
available on the Megan's Law Web site.
CHILD LURING (Sec. 7)
Existing Law
Existing law provides that any person who by act or omission
persuades, induces, or commands a person under the age of 18
years to disobey a lawful order of the juvenile court or causes
a minor to remain a delinquent or dependent child is guilty of
contributing to the delinquency of a minor. (Pen. Code 272,
subd. (a)(1).)
Existing law provides that an adult stranger 21 years of age
or older who knowingly contacts or communicates with a minor
12 years of age or younger, who knew or should have known that
the minor is 12 years of age or younger, for the purpose of
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persuading, transporting, or luring the minor away from his or
her home or known location, without consent, is guilty of
either an infraction or a misdemeanor. (Pen. Code 272,
subd. (b)(1).)
Existing law provides that the crime of luring a child from his
home does not apply to contact made by a person 1) in an
emergency, or 2) in the course and scope of employment, or 3) to
contact made by a volunteer for a recognized civic or charitable
organization. (Pen. Code 272, subd. (b)(2) and (4).)
Existing law provides that an infraction is not punishable by
imprisonment. (Pen. Code 19.6.)
Existing law provides that a person charged with an infraction
is not entitled to a trial by jury or a public defender or other
counsel appointed to represent him or her at public expense.
(Pen. Code 19.6.)
Existing law provides that a person who attempts to commit a
crime, but who fails to commit the crime or who is prevented
from doing so, shall generally receive one-half the sentence
normally imposed for the completed crimes. Certain exceptions
apply; the punishment for attempted, premeditated murder is life
in prison with the possibility of parole. (Pen. Code 664.)
Existing law provides that a person is guilty of an attempt to
commit a crime where he or she specifically intends to commit
the crime and takes a direct, but ineffectual, step towards its
commission. (Pen. Code 21a; 1 Witkin & Epstein, Cal. Crim.
Law (3d Ed. 2000) 53.)
Existing law provides that every person who "annoys or molests"
a minor is guilty of a misdemeanor, punishable by up to one year
in a county jail, a fine of up to $1,000, or both. (Pen. Code
647.6.) Decisional law has interpreted this crime to include an
element that the perpetrator had an abnormal or unnatural sexual
interest in children. (People v. McFarland (2000) 78
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Cal.App.4th 489.)
A person who has been previously convicted of this offense is
guilty of a felony.
A person who committed this crime after entering a residence
without consent is guilty of an alternate felony-misdemeanor.
A person who has been previously convicted of a specified sex
crime that involved a victim under the age or 16, or a
previous felony conviction under Section 647.6, or a specified
prior lewd conduct ( 288) conviction, or a conviction for
using a minor under the age of 14 in the production of illegal
pornography, is guilty of a felony, punishable by a prison
term of 2, 4 or 6 years.
This Bill
This bill creates a new crime and sentencing scheme concerning
persons with an unnatural or abnormal sexual interest in minors
who contact minors with the intent to engage in sexual activity.
This new crime describes a range of prohibited conduct and sets
corresponding penalties. This new crime is drawn from a
long-standing statute (Pen. Code 647.6) that prohibits a
person who has an abnormal sexual interest in children from
annoying or bothering children. This crime includes the
following provisions:
A person who, motivated by abnormal or unnatural sexual
interest in children, arranges a meeting with a minor, or a
person he or she believes to be a minor, for the purpose of
engaging in lewd conduct, or exposing his or her genitals,
genital area or rectal area, or for having the child do so is
guilty of a misdemeanor, punishable by imprisonment in county
jail for up to one year, a fine of up to $5000, or both.
If the person has been previously convicted of this crime, or
any offense for which the person must register as a sex
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offender, the person is guilty of a felony.
If the person goes to the arranged meeting place at or about
the arranged time, the person is guilty of a felony and shall
be punished by imprisonment in a state prison for 2, 3 or 4
years, and a fine of up to $10,000.
This bill specifically provides that "prosecution under this
section shall not prohibit prosecution under any other provision
of law."
LOITERING IN AREAS WHERE THERE ARE VULNERABLE POPULATIONS - SEX
OFFENDERS (Secs. 35 and 36)
Current law generally prohibits sex offenders from going into
any school building or upon any school ground or adjacent street
or sidewalk, unless the person is a parent or guardian of a
child attending that school, or is a student at the school or
has prior written permission for the entry from the chief
administrative officer of that school, if they remain there
after being asked to leave, as specified. (Penal Code 626.8.)
This bill would revise this provision to remove from its text
the reference to registered sex offenders.
This bill would enact a new crime to provide that any registered
sex offender who comes into any school building or upon any
school ground, without lawful business thereon or written
permission from the chief administrative official of that
school, or who loiters about any street, sidewalk, or public way
adjacent to any school building, school grounds, public
playground, or other youth recreational facility where minors
are present without lawful business thereon, is guilty of a
misdemeanor. Under this bill , no request to leave would have to
be made for the crime to apply.
This bill additionally would provide that any registered sex
offender whose victim was an elderly or dependent person, as
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specified, who comes onto any property where elderly or
dependent persons reside without lawful business thereon or
written permission from the director of the facility, is guilty
of a misdemeanor.
This bill would impose fine and jail time punishments, as
specified.
CHILD SAFETY PROGRAMS (Sec. 57)
This bill states the legislative intent to create school-based
programs to promote child safety and prevent child abductions.
"SAFE" TEAMS
Current law establishes the "County Sexual Assault Felony
Enforcement" Team program, which authorizes any county to
"establish and implement a sexual assault felony enforcement
(SAFE) team program," as specified. (Penal Code 13887.)
Current law requires that the mission of SAFE "shall be to reduce
violent sexual assault offenses in the county through proactive
surveillance and arrest of habitual sexual offenders, as defined
in Section 667.71, and strict enforcement of registration
requirements for sex offenders pursuant to Section 290. . . .
The proactive surveillance and arrest authorized by this chapter
shall be conducted within the limits of existing statutory and
constitutional law." (Penal Code 13887.1.)
This bill would revise this mission to include the following:
(c) The mission of this program shall also be to
provide community education regarding the purposes
of (sex offender registration and Megan's Law).
The goal of community education is to do all of
the following:
(1) Provide information to the public about
ways to protect themselves and families from
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sexual assault.
(2) Emphasis of the importance of using the
knowledge of the presence of registered sex
offenders in the community to enhance public
safety.
(3) To explain that harassment or vigilantism
against registrants may cause them to disappear
and attempt to live without supervision, or to
register as transients, which would defeat the
purpose of sex offender registration.
Current law provides that regional SAFE teams may consist of
officers and agents from the following law enforcement agencies:
Police departments.
Sheriff's departments.
The Bureau of Investigations of the Office of the
District Attorney.
County probation departments. (Penal Code 13887.2.)
Current law provides that, in addition, to "the extent that
these agencies have available resources, the following law
enforcement agencies:
(1) The Bureau of Investigations of the California
Department of Justice.
(2) The California Highway Patrol.
(3) The State Department of Corrections.
(4) The Federal Bureau of Investigation." (Penal Code
13887.2(e).)
Current law states the following objectives for this program:
To identify, monitor, arrest, and assist in the prosecution of
habitual sexual offenders who violate the terms and conditions
of their probation or parole, who fail to comply with the
registration requirements of Section 290, or who commit new
sexual assault offenses.
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To collect data to determine if the proactive law enforcement
procedures adopted by the program are effective in reducing
violent sexual assault offenses.
To develop procedures for operating a multijurisdictional
regional task force. (Penal Code 13887.3.)
Current law provides that "[n]othing in this chapter shall be
construed to authorize the otherwise unlawful violation of any
person's rights under the law." (Penal Code 13887.4.)
This bill would require every county to establish a SAFE team.
THE SEXUALLY VIOLENT PREDATOR ("SVP") CIVIL COMMITMENT LAW
(Secs. 53; 61 et seq.)
Basic Governing Provisions and Definitions in SVP Law
Existing Law - Background
Existing law includes basic constitutional principles applicable
to involuntary civil commitment. As described in In re Howard
N. (2005) 35 Cal.4th 117, 127-128: "The high [United States
Supreme] court has repeatedly recognized that civil commitment
for any purpose constitutes a significant deprivation of liberty
that requires due process protection. Moreover, it is
indisputable that involuntary commitment to a [psychiatric]
hospital after a finding of probable dangerousness . . . can
engender adverse social consequences to the individual." (Ibid,
quoting Addington v. Texas (197) 441 U.S. 418, 425.)
Under current law , the Sexually Violent Predator (SVP) law,
provides for the civil commitment for psychiatric treatment of a
prison inmate found to be a sexually violent predator after the
person has served his or her prison commitment. (Welf. & Inst.
Code 6600, et seq.)
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SVP Commitment Standards, Definitions and Related Provisions
Existing Law
Existing law defines a sexually violent predator as an inmate
"who has been convicted of a sexually violent offense against
two or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior." (Welf. & Inst. Code 6600, subd. (a).)
Existing law defines a "sexually violent offense" as one of the
following crimes when committed by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person. (Welf. & Inst. Code 6600, subd.
(a).):
Rape or spousal rape. (Pen. Code 261, subd. (a)(2),
262, subd. (a)(1).)
Rape or sexual penetration in concert. (Pen. Code
264.1.)
Lewd conduct. (Pen. Code 288 subds. (a) or (b).)
Sexual penetration. (Pen. Code 289, subd. (a).)
Sodomy. (Pen. Code 286.)
Oral Copulation. (Pen. Code 288a.)
Existing law also describes a sexually violent offense as any
crime against a child under 14 years of age that involved
substantial sexual conduct, which is further defined as
penetration of the vagina or rectum, oral copulation, or
masturbation by the perpetrator or victim. (Welf. & Inst. Code
6600.1.)
Existing law provides that the details of a prior qualifying
conviction - most importantly used to establish that an offense
was committed by force or duress - can be proved by documentary
evidence, including preliminary hearing transcripts, trial
transcripts, probation and sentencing reports, and Department of
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Mental Health ("DMH") evaluations. (Welf. & Inst. Code 6600,
subd. (a)(3).)
Existing law provides that a qualifying conviction for a
sexually violent offense must also fit in one of the following
categories:
A conviction that resulted in a determinate prison term;
A conviction prior to July 1, 1977, that resulted in an
indeterminate prison term;
A conviction from another jurisdiction that includes all the
elements of a qualifying sexually violent offense under
California law;
A conviction under a predecessor statute that includes all the
elements of a sexually violent offense;
A prior conviction for a sexually violent offense for which
the defendant received a grant of probation;
A prior finding of not guilty by reason of insanity for a
sexually violent offense; or
A conviction resulting in a finding that the person was a
mentally disordered sex offender.
Existing law defines a "diagnosed mental disorder" as one that
includes "a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to
the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others." (Welf.
& Inst. Code 6600, subd. (c).)
Existing law defines predatory sexual acts as those committed
against a stranger, casual acquaintance who has no substantial
relationship with the perpetrator, or a person with whom the
alleged SVP established a relationship for purposes of
victimization. (Welf. & Inst. Code 6600, subd. (e).)
Existing law does not require that a defendant's prior
qualifying convictions be predatory. (People v. Torres (2001)
25 Cal.4th 680.) Only a defendant's likely future predatory
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sexual behavior need be established. (People v. Hurtado (2002)
28 Cal.4th 1179.)
Existing law implements the SVP law as outlined below:
The SVP law applies to an inmate serving a state prison term
or a parole revocation term.
The law requires evaluation by two specified mental health
professionals according to protocols established by DMH.
The evaluation must be done at least six months prior to
release from custody, unless the Department of Corrections
received the inmate with less than nine months to serve, or
court or administrative action modified the inmate's sentence.
DMH then requests the prosecutor from the county of commitment
to file a petition for involuntary civil commitment and the
superior court determines probable cause that the inmate is an
SVP.
If the court finds probable cause, a formal trial upon proof
beyond a reasonable doubt is held.
If the state prevails, the SVP is committed to DMH for two
years of treatment, with additional two-year commitments upon
successful new petition proceeding. (Welf. & Inst. Code
6601.)
Existing law provides that the evaluators must agree that the
inmate meets the statutory criteria for commitment before the
case can be submitted to the district attorney for filing. If
the evaluators disagree, additional, independent evaluators are
appointed. The second pair of evaluators must agree that the
person meets the requirement for SVP commitment or the case
cannot proceed. (Welf. & Inst. Code 6601, subds. (c)-(e).)
This Bill
This bill provides that a sexually violent offense includes
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kidnapping (as defined under Penal Code 207 or 209) with the
intent to commit one of a list of specified sex crimes.
This bill adds assault with intent to commit a sex crime (Pen.
Code 220 - essentially a combination of an attempted sex crime
and an assault) as a qualifying prior SVP crime.
This bill changes and expands the definitions and descriptions
of qualifying prior convictions so as to define such crimes
generically in terms of how the crime was committed - by force,
fear or duress, including threats of future retaliation -
instead of by particular crime sections and subdivisions. For
example, if an oral copulation was prosecuted only under a
section defined in terms of the age difference between the
perpetrator and the victim but the crime also involved force or
fear, this would constitute a qualifying SVP crime under this
bill, when it likely would not so qualify under existing law.
Review of SVP Status, Conditional Release under Treatment and
Unconditional Release
Existing Law
Existing law provides that a person committed to the custody of
DMH as an SVP shall have a current examination of his or her
mental condition made at least once every year. (Welf. & Inst.
Code 6605, subd. (a).)
Existing law provides that unless the person waives the right to
petition for conditional release to a community treatment
program (Welf. & Inst. Code 6608), the superior court annually
must conduct a "show cause hearing" to determine whether
"probable cause exists to believe that the committed person's
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diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to
engage in sexually violent criminal behavior if discharged."
(Welf. & Inst. Code 6605, subd. (c).)
Existing law provides that if the court finds probable cause in
the annual review that the SVP patient no longer presents a danger
of committing sexually violent offenses, the court shall order a
trial to determine if the patient should be discharged. At trial,
the state has the burden to prove beyond a reasonable doubt that
the patient is dangerous. (Welf. & Inst. Code 6605, subds.
(c)-(d).)
Existing law provides that if the Director of DMH finds that the
mental disorder of a person committed as an SPV has changed such
that the person is not likely to commit acts of predatory sexual
violence while in the community, the director shall recommend
conditional release of the person. The recommendation shall be
given to the committing court, the (prosecuting) county attorney
and the person's attorney. The court shall then set a hearing
on the matter. (Welf. & Inst. Code 6607.)
This Bill
This bill , in its provisions concerning annual review of SVP
status, the show cause hearing, probable cause findings and the
resulting trial based on a probable cause finding, is drawn from
the Washington State processes. (See Comment 3, infra.)
This bill provides that the annual examination and report of the
mental status of an SVP patient shall consider whether or not
the patient currently meets the definition of an SVP, and
whether or not the patient can be conditionally released with
supervision, or unconditionally released.
This bill provides that DMH, in the form of a declaration, shall
report to the court as to results of the annual examination.
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This bill provides that if DMH determines that an SVP patient no
longer meets the statutory definition of an SVP, or that the
patient can be safely released conditionally, DMH shall
authorize the person to petition for conditional release or
unconditional discharge.
This bill provides that at the time of the issuance of the
annual report, the SVP patient shall be informed of his or her
right to petition for conditional or unconditional release at a
trial.
This bill provides that a trial shall be ordered where the
defendant establishes probable cause to believe that he or she
is no longer an SVP, or that he or she can be safely
conditionally released under supervision.
This bill provides that, if the patient does not affirmatively
waive the right to petition for conditional or unconditional
release, the court shall set a show-cause hearing to determine
whether there is probable cause that 1) the patient can be
safely conditionally released under supervision, and 2) whether
the patient no longer is an SVP.
This bill provides that the court at the show-cause hearing
shall consider documentary evidence.
This bill provides that the SVP patient may be represented by
counsel at the show-cause hearing, but the patient does not have
a right to be present.
This bill provides that at the show-cause hearing, the state
shall present prima facie evidence 1) that the person
continues to meet the definition of an SVP, and 2) that the
person cannot be safely released into the community under
supervision.
This bill provides that in presenting prima facie evidence the
state can rely on the annual report.
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This bill provides that the person can present responsive
declarations and affidavits to which the state can reply.
This bill provides that the court shall set a trial if the court
finds either 1) the state failed to present a prima facie case
that the person continues to be an SVP or that he cannot be
safely released under supervision, or 2) that probable cause
exists that the person no longer fits the definition of an SVP
or that the person can be safely released into the community
under supervision. This bill requires the court to set a trial
on either or both issues, depending on the results of the
show-cause hearing.
This bill provides that, at the show-cause hearing, if the court
has not previously considered the issue of whether or not the
person can be safely released into the community under
supervision, the court shall consider this issue.
This bill provides that if the court orders a trial, the state
shall have the burden to prove beyond a reasonable doubt that 1)
the person continues to meet the definition of an SVP, or 2) the
person can be safely released into a less restrictive
alternative in the community under supervision. In setting the
trial, the court shall frame the issues to be determined in the
trial.
This bill , as particularly concerns a trial on conditional
release, provides that the state has the burden to prove that
either conditional release is either 1) not in the best
interests of the person, or 2) any less restrictive alternative
and conditional release would not include conditions that would
adequately protect the community.
This bill provides that either the state or the person can
demand a jury trial if, pursuant to the show-cause requirements
described above, a trial is ordered.
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This bill provides that the person shall be entitled to all the
constitutional protections available at the original commitment
trial.
This bill provides that a new trial on the status of an SVP can
only be ordered if the probable cause includes evidence from a
licensed professional of the following:
Physiological changes, such as paralysis, stroke, et
cetera, that renders a person permanently unable to commit
a sexually violent act; or
Changes in mental condition brought about by positive
response to treatment that renders the person safe for
conditional or unconditional release.
This bill provides that a change in a single "demographic"
factor - age, marital status, gender - does not constitute a
change justifying probable cause.
This bill provides that jurisdiction of the court over a
conditionally released person continues until the person is
unconditionally discharged.
This bill provides that the court must find all of the following
before ordering conditional release:
The person will be treated by a qualified treatment provider;
The treatment provider has presented a specific course of
treatment, has agreed to assume responsibility for treatment
and will regularly report to the court, the prosecutor, and
DMH;
Housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing has
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agreed to accept the person and provide the necessary level of
security;
The agency or person providing housing must agree to provide
notice that the person has left his residence;
The released person agrees to comply with the conditions
imposed by the court and to comply with the treatment
provider; and
The person shall comply with supervision of DMH or CDCR.
This bill provides that at the close of evidence at the trial,
or through summary judgment proceedings at the show-cause
hearing, if the court finds that that there is no legally
sufficient basis to present the issues of release to a jury, the
court shall grant a motion by the state on the issue of
conditional release as a matter of law.
This bill provides that the court, in ordering conditional
release, shall impose all conditions necessary to ensure the
safety of the community and compliance with the treatment
program.
This bill provides that if the person cannot be released such
that compliance with conditions of release cannot be met and
community safety assured, the person shall be remanded to the
custody of the secure treatment facility in DMH.
This bill provides that any person or entity designated to
provide treatment or other services shall agree in writing to
provide treatment, monitoring and supervision under the SVP
release statutes.
This bill provides that a person providing services, treatment
or monitoring may be compelled to testify and all evidentiary
privileges waived.
This bill provides that the court shall review the case of a
conditionally released person each year at a minimum. This bill
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provides that the sole issue to be considered at the review
shall be whether or not the person shall remain on conditional
release.
This bill provides that DMH shall provide a recommendation to
the court before the court places a person in a conditional
release program.
SVP Parole Provisions (and Related General Parole Rules)
Existing Law
Existing law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years. Specified sex offenders - those
released after serving a determinate term of imprisonment and
specified in this bill - shall be released on parole for a
period of five years. Specified sex offenders - those released
by the Board of Prison Terms following an indeterminate term of
imprisonment and specified in this bill - shall be released on
parole for a period of five years subject to an additional
five-year period of parole, as specified. (Pen. Code 3000,
subd. (b)(1) and (3).)
Existing law provides that a finding that a person is an SVP
"shall not toll, discharge or otherwise affect that person's
period of parole." (Pen. Code 3000, subd. (a)(4).)
This Bill
This bill tolls parole for any person evaluated as a possible
SVP or committed to the SVP program. Parole tolling under this
bill applies during the following periods:
Evaluation of the person by experts and through the probable
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cause hearing;
During the commitment trial process following a finding or
probable cause; and
During commitment to the SPV program.
This bill provides that the period of parole includes the period
of conditional release in the community under supervision.
CHILD PORNOGRAPHY AND RELATED STATUTES (Secs. 21-34)
Existing Law
Existing law provides that any person who "hires, employs, or
uses" a minor to assist in committing any of the acts described
in Penal Code Section 311.2 (see next paragraph) is guilty of a
misdemeanor. If the person has a prior conviction, he or she is
guilty of a misdemeanor, but the court may impose a fine of up
to $50,000, and may sentence the defendant pursuant to Penal
Code Section 311.9, which allows felony punishment for repeated
convictions of child pornography related crimes. (Pen. Code
311.4, subd. (a).)
Existing law , as set out in four subdivisions in Penal Code
Section 311.2, defines various crimes related to the
distribution or sale of obscene matter and matter involving
minors engaged in sexual conduct:
Possessing or importing into California any obscene
matter for sale or distribution without commercial
purposes: misdemeanor for first conviction, felony and
increased fines for subsequent convictions.
Possessing, importing, etc., for commercial sale or
distribution any obscene matter that includes depictions
(whether obscene or not) of minors engaging in actual or
simulated sexual conduct: felony, with 2, 3, or 6 year
terms and $100,000 fine.
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Possessing, importing, etc., for sale or distribution to
adults, without commercial purpose, any matter that depicts
minors engaged in actual or simulated sexual conduct:
misdemeanor, and apparently a felony for second conviction,
pursuant to Section 311.9.
Possessing of importing, etc., for distribution to
minors any matter that depicts minors engaged in actual or
simulated sexual conduct: felony, with penalty 16 months,
2 years or 3 years in prison. Commercial consideration is
not required.
Existing law provides that any person who hires or uses a minor
to model or pose, or uses a minor to assist in modeling or
posing that involves depictions of minors engaged in sexual
activity for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for 3, 6, or 8
years. (Pen. Code 311.4, subd. (b).)
Existing law provides that any person who hires or uses a minor
to model or pose, or uses a minor to assist in modeling or
posing that involves depictions of minors engaged in sexual
activity for other than commercial purposes, is guilty of a
felony, punishable by imprisonment in the state prison for 16
months, 2 years or 3 years. (Pen. Code 311.4, subd. (c).)
Existing law provides that with regard to any obscene matter
depicting a person under the age of 18 engaged in actual or
simulated "sexual conduct," any person who sends, imports,
produces or duplicates such material, with the intent to
distribute the material, or who offers to do so, is guilty of an
alternate felony-misdemeanor, punishable by up to 1 year in
county jail, a fine up to $1000, or both, or imprisonment in
state prison for 16 months, 2 years, or 3 years, and a fine of
up to $10,000. Exceptions apply to law enforcement
investigations, legitimate scientific/educational activities, or
the lawful acts of married minors. (Pen. Code 311.1.)
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Existing law provides that a person who violates Section 311.5
(promotional material involving obscenity) or Section 311.2
(distribution or sale of obscene material or child pornography),
except subdivision (b) of Section 311.2 (commercial distribution
of obscene matter depicting minors), is a misdemeanor punishable
by a fine of not more than $1000 plus $5 for each additional
unit of prohibited material, not to exceed $10,000, or by
imprisonment in the county jail for not more than six months
plus one day for each additional unit of prohibited material,
not to exceed 360 days in the county jail, or by both such fine
and imprisonment. If such person has previously been convicted
of any offense in this chapter, or of a violation of Section
313.1, a violation of Section 311.2 or 311.5, except subdivision
(b) of Section 311.2, is punishable as a felony. (Pen. Code
311.9, subd. (a).)
Existing law provides that a person who violates Section 311.4
(use of a minor in the production or distribution of illegal
pornography) is punishable by a fine of not more than $2000 or
by imprisonment in the county jail for not more than one year,
or both. If the person has been previously convicted of a
violation of Section 311.4, he or she is guilty of a felony,
punishable by imprisonment in the state prison. (Pen. Code
311.9, subd. (b).)
Existing law provides that a person who violates Section 311.7
(conditioning book, newspaper, et cetera, distribution or
franchise on acceptance of obscene material) is guilty of a
misdemeanor, punishable by a fine of not more than $1000 or
imprisonment in the county jail for not more than 6 months, or
both. For a second and subsequent offense the defendant shall
be punished by a fine of not more than $2000, or by imprisonment
in the county jail for not more than one year, or both. If such
person has been twice convicted of a violation of crimes
involving illegal sexual material, a violation of Section 311.7
is punishable as a felony. (Pen. Code 311.9, subd. (c).)
Existing law provides that Penal Code Section 311.11 (possession
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of depictions of minors engaged in actual or simulated sexual
conduct) does not apply to "drawings, figurines, statutes, or
any film rated by the Motion Picture Association of America
[MPAA]." Such ratings include G, PG, PG-13, R and NC-17, but
not XXX or the like). (Pen. Code 311.11, subd. (d).)
Existing law defines "sexual conduct," whether actual or
simulated, as the following: masturbation, sexual intercourse,
oral copulation, anal intercourse, bestiality, sexual sadism,
lewd or lascivious penetration of the vagina or rectum by any
object, exhibition of the genital, pubic or rectal areas for
purposes of sexual stimulation of the viewer, and lewdly
performed excretory functions. (Pen. Code 311.4.)
Existing law provides that "an act is simulated when it gives
the appearance of being sexual conduct." (Pen. Code 311.4.)
Existing law provides that any person who sends "harmful matter"
(obscenity from the perspective of minors) to a minor to seduce
or arouse is guilty of an alternate misdemeanor-felony,
punishable by one year in county jail or 16 months, 2 or 3 years
in state prison for the first offense and a felony for a second
or subsequent offense. (Pen. Code 288.2.)
Existing law provides that a person who possesses or controls
matter depicting a person under the age of 18 engaged in actual
or simulated "sexual conduct" is guilty of a misdemeanor,
punishable by imprisonment in the county jail for up to one
year, a fine not exceeding $2500, or both. The subject material
need not be obscene under this section. (Pen. Code 311.11.)
Existing law , as interpreted by relevant appellate
decisions, provides that Penal Code Section 311.11 "requires
a real minor and also requires knowledge of minority on the
part of the perpetrator." (People v. Kurey (2001) 88
Cal.App.4th 840, 847.)
Existing law provides that if a person convicted of simple
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possession of child pornography (Pen. Code 311.11, subd. (a))
has a prior conviction for possession of matter that depicts
minors engaged in actual or simulated sexual conduct (Pen. Code
311.11), or a conviction for either commercial distribution of
sexual material depicting minors (Pen. Code 311.2, subd. (b)),
or use of a minor in making such material for commerce (Pen.
Code 311.4, subd. (b)) he or she is guilty of a felony and
subject to imprisonment in the state prison for 2, 4, or 6 years
and a fine of up to $10,000. (Pen. Code 311.11, subd. (b).)
Existing law provides that any person who hires or uses a minor
to model or pose, or uses a minor to assist in modeling or
posing that involves depictions of minors engaged in sexual
activity for commercial purposes is guilty of a felony,
punishable by imprisonment in the state prison for 3, 6, or 8
years. (Pen. Code 311.4, subd. (b).)
Existing law provides that any person who hires or uses a minor
to model or pose, or uses a minor to assist in modeling or
posing that involves depictions of minors engaged in sexual
activity for other than commercial purposes, is guilty of a
felony, punishable by imprisonment in the state prison for 16
months, 2 or 3 years. (Pen. Code 311.4, subd. (c).)
This Bill
This bill increases the penalties for hiring or using a minor to
model or pose, or using a minor to assist in modeling or posing,
in depictions of minors engaged in sexual activity for other
than commercial purposes, from 6 months, 2 or 3 years in prison,
to 2, 3 or 4 years in prison.
This bill reorganizes the obscenity and child pornography law.
The bill makes the following organizational changes:
Eliminates redundant definitions of the forms of "matter" that
can be or are prohibited under the obscenity and child
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pornography law;
Specifies that child pornography - which need not be obscene -
must be in a visual form;
Places the major provisions concerning possession of child
pornography and distribution of such material in adjoining
sections and subdivisions; and
Places the provisions concerning distribution or exchange of
obscene material, and offering or intending to distribute or
exchange such material, in a single section.
This bill increases the penalties for possession and for
distribution or exchange of child pornography, and the penalties
for offering or intending to distribute or exchange child
pornography, as follows<1>:
Possession of Child Pornography (first-time convictions)
The matter depicts a child under 16 engaged in explicit
sexual conduct<2>:
felony, with a penalty of 16 months, 2 years or 3 years in
prison.
The matter depicts a minor who is 16 or 17 years old
engaged in explicit sexual conduct:
alternate felony-misdemeanor.
-------------------------
<1> See Comment 11, infra, for a chart depicting these proposed
sentencing changes and current law.
<2> For purposes of these provisions, "explicit sexual conduct"
"means any of the following, whether actual or simulated:
sexual intercourse, oral copulation, anal intercourse, anal oral
copulation, masturbation on bare skin, bestiality, sexual
sadism, sexual masochism, penetration of the vagina or rectum by
any object in a lewd or lascivious manner, graphic and explicit
display of the genitals or pubic or rectal area of an overtly
sexual character, or excretory functions performed in a lewd or
lascivious manner, whether or not any of the above conduct is
performed alone or between members of the same or opposite sex
or between humans and animals."
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The matter depicts sexual conduct<3> not explicit that
depicts a minor under the age of 16:
alternate felony-misdemeanor.
The matter depicts sexual conduct not explicit that
depicts a minor who is 16 or 17 years:
misdemeanor.
Possession of Child Pornography with the Intent to Distribute
or Exchange, or Offering to Distribute or Exchange
The matter depicts a child under 16 engaged in explicit
sexual conduct:
felony, with a penalty of 2, 3, or 4 years in prison.
The matter depicts a minor who is 16 or 17 years old
engaged in explicit sexual conduct:
felony.
The matter depicts sexual conduct not explicit that
depicts a minor under the age of 16:
--------------------------
<3> "Sexual conduct" under these provisions "means any of the
following, whether actual or simulated: sexual intercourse,
oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genitals or pubic or rectal
area for the purpose of sexual stimulation of the viewer, any
lewd or lascivious sexual act as defined in Section 288, or
excretory functions performed in a lewd or lascivious manner,
whether or not any of the above conduct is performed alone or
between members of the same or opposite sex or between humans
and animals. An act is simulated when it gives the appearance
of being sexual conduct."
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felony.
The matter depicts sexual conduct not explicit that
depicts a minor who is 16 or 17 years:
alternate felony-misdemeanor.
Where the person distributing child pornography is a
registered sex offender, the crime is a felony, punishable
by a term of 3, 6 or 8 years in prison.
This bill provides that where a person has been previously
convicted of any registerable sex crime, possession of child
pornography is a felony, with a prison term of 2, 4 or 6 years.
Statute of Limitations - Child Pornography
Current law generally provides for a six year statute of
limitations for pornography offense. (Penal Code 800)
This bill would extend that period to within 10 years of the
date of production of the pornographic material.
Asset Forfeiture
Existing law includes various provisions for the forfeiture of
profits made from illicit activity, including specified child
pornography and exploitation crimes. (Health & Saf. Code
11469; Pen. Code 186.2.)
Existing law provides that the child pornography and exploitation
forfeiture, as part of the scheme for criminal asset forfeiture
in organized crime prosecutions, shall be done in conjunction
with the criminal trial and is limited to criminal discovery
rules. (Pen. Code 186.2-186.8.)
This bill provides broadly that the profits or proceeds of any
production, sale, et cetera of child pornography shall be
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subject to forfeiture. The forfeiture proceedings shall be
conducted under the rules of civil discovery.
RISK ASSESSMENT FOR SEX OFFENDERS (Secs. 13-19; 48; 49; 54; 55)
Current law provides that the "Department of Corrections, to the
maximum extent practicable and feasible, and subject to
legislative appropriation of necessary funds, shall ensure, by
July 1, 2001, that all parolees under active supervision and
deemed to pose a high risk to the public of committing violent
sex crimes shall be placed on an intensive and specialized
parole supervision caseload." (Penal Code 3005; emphasis
added.)
Existing law states the legislative finding that "continuous
electronic monitoring has proven to be an effective risk
management tool for supervising high-risk persons on probation
who are likely to reoffend where prevention and knowledge of
their whereabouts is a high priority for maintaining public
safety." (Penal Code 1210.7.)
Current law provides that an inmate who is released on parole
for a violation of Section 288 or 288.5 whom the Department of
Corrections and Rehabilitation determines poses a high risk to
the public shall not be placed or reside, for the duration of
his or her parole, within one-half mile of any public or private
school including any or all of kindergarten and grades 1 to 12,
inclusive. (Penal Code 3003.)
Mandated Risk Assessment for All Adult Male Registered Sex
Offenders; STATIC-99
This bill would require that, commencing on January 1, 2007, all
adult males who are required to register as sex offenders shall
be subject to assessment by the STATIC-99 assessment tool. This
bill would provide that the STATIC-99 and its successor
instruments shall be the sole actuarial risk assessment
instrument used for registered sex offenders.
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This bill would provide that, commencing on January 1, 2007, the
actuarial risk assessment instrument for adult males required to
register as sex offenders shall be the STATIC-99.
This bill would provide that there shall be four risk assessment
tier levels assignable to registered sex offenders under this
instrument: low, moderate-low, moderate-high, and high.
This bill would provide that CDCR, in consultation with the
Attorney General and local law enforcement, shall establish and
implement a schedule for conducting, no later than January 1,
2012, STATIC-99 assessments of adult male registered sex
offenders living in California who no longer are in custody, on
probation, or on parole as of the effective date of this
section.
This bill would require that these persons be administered a
STATIC-99 assessment according to the implementation schedule
during their annual registration update by persons authorized to
administer the instrument. This bill would require that the
schedule adopted by DOJ shall give priority to assessing those
registrants with the most recent sex offense convictions.
This bill would provide that any adult male required to register
as a sex offender may seek an assessment before their scheduled
assessment period at his or her own cost as determined by the
department.
Mandated Periodic Review and Update of Risk Assessment
Instrument
This bill would require that on or before January 1, 2010, CDCR,
in consultation with DMH and experts in sex offender risk
assessment and the use of actuarial instruments in predicting
sex offender risk, to periodically evaluate and update the
STATIC-99 or its successor instrument to ensure that
California's standardized actuarial assessment instrument for
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assessing sex offender risk reflects reliable, objective and
well-established protocols for predicting sex offender risk of
recidivism, has been scientifically validated with multiple
cross-validations, and is widely accepted by the courts.
Female and Juvenile Offenders - Identification of Appropriate
Actuarial Risk Assessment Instruments
This bill would require, on or before January 1, 2008, CDCR, in
consultation with the Department of Mental Health and experts in
sex offender risk assessment and the use of actuarial
instruments in predicting sex offender risk, to research
actuarial risk assessment tools for female and juvenile
registered sex offenders, and to make recommendations to the
Governor and to the Legislature concerning the appropriate
actuarial risk assessment instrument to be used to assess those
populations.
Training of Persons to Perform Assessments
This bill would require, on or before January 1, 2008, CDCR, in
consultation with DMH, and experts in sex offender risk
assessment and the use of actuarial instruments in predicting
sex offender risk, to establish a training program for probation
officers, parole officers, and any other persons authorized by
law to perform risk assessment. CDCR would be required under
this bill to use an expert in the field of risk assessment and
the use of actuarial instruments in predicting sex offender risk
to conduct periodic training.
This bill would require probation departments and regional
parole officers to designate persons within their organizations
to attend a yearly training and shall train others within their
organizations who are designated to perform risk assessments as
required or authorized by law.
This bill would require probation officers who conduct sex
offender risk assessments to be trained in an approved program
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as specified, and to receive updated training no less frequently
than every two years, as determined by CDCR.
Risk Assessments at Presentencing, with Results Noted in
Presentencing or Probation Officer's Report
This bill would require probation officers trained in the use of
STATIC-99 to perform a presentencing risk assessment of every
adult male convicted of an offense that requires him to register
as a sex offender.
This bill would require probation officers to assign a risk
assessment tier level score to the assessment, and to include
that score in a presentencing or probation officer's report.
Facts of Offense Sheet
This bill would require probation officers to compile a Facts of
Offense Sheet for every adult male convicted of an offense that
requires him to register as a sex offender containing the
following information concerning the offender and his offense:
name;
all known aliases;
CII number;
physical description;
criminal history, including registerable sex
offenses, other offenses, and arrests that did not result
in conviction for sexual or violent offenses;
unique circumstances of the offense for which
registration is required, including but not limited to,
weapons used or victim pattern;
risk assessment tier level; and
type of victims targeted in the past.
This bill would provide that the defendant may move the court to
correct the Facts of the Offense Sheet, and additionally provide
that any corrections to the Facts of the Offense Sheet offered
by the defendant shall be made consistent with Section 1204 of
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the Penal Code.
This bill would require the Facts of Offense Sheet to be
included in the probation officer's report, and to also be
forwarded to the incarcerating agency, if any.
In addition, this bill would require that a copy of the Facts of
Offense Sheet be sent by the probation department to the
registering law enforcement agency in the jurisdiction where the
person will reside on supervised probation within three days of
the person's release on probation. Probation also would be
required to send a copy of the Facts of Offense Sheet to the
Department of Justice Sex Offender Tracking Program within three
days of the person's sex offense conviction, and would require
that it be made part of the registered sex offender's file
maintained by the Sex Offender Tracking Program. This bill
would provide that the Facts of Offense Sheet shall thereafter
be made available to law enforcement by the Department of
Justice, which shall post it with the offender's record on the
Department of Justice Internet Web site, and shall be accessible
only to law enforcement.
This bill would provide that if the registered sex offender is
sentenced to a period of incarceration, at either the state
prison or a county jail, the Facts of Offense Sheet would be
required to be sent by CDCR or the county sheriff to the
registering law enforcement agency in the jurisdiction where the
registered sex offender will be paroled or will live on release,
within three days of the person's release, with comparable
provisions applicable to the Department of Mental Health if the
person is committed to DMH.
Assessments of Adult Males Incarcerated in Prison or Committed
to DMH
Current law generally requires probation to provide CDCR with an
offense report for persons committed to CDCR. (Penal Code
1203(c).)
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This bill would require that if the person is being committed
to CDCR for a registerable sex offense, the probation officer
shall perform a risk assessment of the person using the
STATIC-99 assessment tool, as specified.
This bill would require that all adult males who have been
convicted of an offense for which they are required to register
as a sex offender and who are incarcerated in state prison or
committed to the Department of Mental Health be subject to sex
offender risk assessment as provided by this bill. This bill
would require that the assessment take place at least four
months, but no sooner than 10 months, prior to release from
incarceration or commitment.
This bill would require CDCR to conduct risk assessments of all
parolees under active supervision and deemed to be high risk, as
specified.
CDCR - Assessment of Prison Inmates
This bill would require CDCR to use the STATIC-99 assessment
tool to perform a risk assessment on all male inmates who are
convicted of a registerable sex offense, as specified, upon
commitment to the department unless they were assessed prior to
commitment.
This bill further would provide that, for those inmates already
in the custody of the department, the assessment shall be
performed prior to being released on parole, as specified.
CDCR Inmates - Mandatory Control and Containment Programming
This bill would require that inmates who have a risk assessment
of moderate-high or high risk for committing a sex offense,
according to the STATIC-99, participate in sex offender control
and containment programming while incarcerated and while on
parole, as developed and specified by CDCR. This bill would
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require that programming be based on current, evidence-based
correctional standards that is proven to reduce the risk of
reoffending.
This bill would provide that notwithstanding any other provision
of law, inmates who fail to participate in the programming
prescribed shall not be eligible to earn any credits, as
specified.
This bill additionally would provide that an inmate serving a
life term may be excluded from sex offender programming until he
or she receives a parole date and is within five years of that
date, unless CDCR determines that the programming for that
inmate is necessary for the public safety.
This bill would provide that inmates who are condemned to death
or sentenced to life without the possibility of parole are
ineligible to participate in sex offender programming.
Pre-Release Risk Assessment
This bill would require CDCR to conduct a pre-release risk
assessment, and would require that the person administering the
assessment be trained through an approved program, with updated
training no less frequently than every two years as determined
by CDCR, as specified.
This bill additionally would require that adult male registered
sex offenders who, subsequent to their conviction for a sex
offense, are convicted of a separate criminal offense resulting
in incarceration or commitment, or which would require a
probation officer's report, but who have not been the subject of
a risk assessment, be assessed in accordance with these
provisions.
Parolees and Probationers
This bill would require adult male registered sex offenders who
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are on probation or parole as of the effective date of this
section be subject to a risk assessment using the STATIC-99.
This bill additionally would impose its risk assessment
requirements on adult male sex offenders convicted in a
jurisdiction other than California who are required to register
while living in California, who are being supervised in
California under an interstate compact or who are on federal or
military supervision in California. This bill would assign
priority to assessing those offenders who were assigned the
highest risk level under the STATIC-99 in the jurisdiction where
they were convicted.
Current law generally requires a probation officer to
immediately investigate and make a written report to the court
of his or her findings and recommendations, including his or her
recommendations as to the granting or denying of probation and
the conditions of probation, if granted. (Penal Code 1203.)
This bill would require that if a person is convicted of a
felony registerable sex offense, the probation officer shall
administer the STATIC-99, as specified, to determine the
person's risk of reoffending, and would require the results of
the assessment be part of the report to the court.
Current law provides that if a person is convicted of a
misdemeanor, the court may either refer the matter to the
probation officer for an investigation and a report or summarily
pronounce a conditional sentence.
This bill would provide that if the crime requires the person to
register as a sex offender, the probation officer would be
required to administer the STATIC-99, as specified, to determine
the person's risk of reoffending.
Access to Records by Persons Authorized to Perform STATIC-99
Assessment
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This bill would provide that any person authorized and trained
to perform STATIC-99 risk assessments shall be granted access to
all relevant records pertaining to a registered sex offender, as
specified.
This bill would require that all state and local agencies and
departments that maintain records that contain information about
registered sex offenders, as specified, maintain those records
during the lifetime of the registered sex offender.
Specialized sex offender caseloads - Probation and Parole (Secs.
17; 47; 54)
This bill would require probation departments and the parole
authority to create specialized caseloads for all sex offenders,
and to develop expertise in sex offender management.
This bill would require that sex offenders assessed at high risk
levels be monitored by agents responsible for reduced case
loads.
This bill would require that the risk assessment tier level
assigned to a registered sex offender be used to determine the
level of monitoring and control on supervision.
Current law provides that persons placed on probation by a court
are under the supervision of the county probation officer, who
determines both the level and type of supervision consistent
with the court-ordered conditions of probation.
This bill would require each county to designate certain
probation officers to monitor registered sex offenders, as
specified. This bill would require that these probationers
report more frequently to one of those designated probation
officers than any other probationer is required to report, and
shall be subject to intensive scrutiny by that designated
officer.
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This bill would require each probation department to "develop
control and containment programming, in conjunction with (CDCR)
for persons who are designated at a moderate-high or high level
of risk based on the STATIC-99, and shall require participation
in appropriate programming of those persons as a condition of
probation."
Current law provides that the "Department of Corrections, to the
maximum extent practicable and feasible, and subject to
legislative appropriation of necessary funds, shall ensure, by
July 1, 2001, that all parolees under active supervision and
deemed to pose a high risk to the public of committing violent
sex crimes shall be placed on an intensive and specialized
parole supervision caseload." (Penal Code 3005.)
This bill would revise this provision to incorporate the use of
the STATIC-99, and to require that these parolees report
frequently to designated parole offices.
This bill would require CDCR to develop control and containment
programming for sex offenders who have been assessed pursuant to
Section 5040 and shall require participation in appropriate
programming as a condition of parole.
Plea Bargaining Scrutiny - Sex Crimes that are Subject to Life
Term Sentencing (Sec. 46)
Existing law provides that in presenting a plea bargain to a
crime defined as a "serious felony," the prosecutor must
demonstrate to the court that the plea bargain is necessary
because there is insufficient evidence to prove the serious
felony or that the sentence to be imposed under the plea bargain
would not be substantially different had the bargain not been
made. (Pen. Code 1192.7.)
This bill states the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that
provide sentencing under life-term schemes such as the
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one-strike law (Pen. Code 667.61), three strikes (Pen. Code
1170.12) and the habitual sexual offender law (Pen. Code
667.71), rather than by engaging in plea bargaining.
This bill provides that where a plea bargain is made in a case
where the defendant was charged with a sex crime that would be
punished by a life-term sentence, the prosecutor shall state on
the record why a sentence under those provisions was not sought.
SEX CRIME SENTENCING
New Crime: 25 to Life for Sex with a Child
Under current law a single count (chargeable and punishable act)
of rape is generally punishable by imprisonment in the state
prison for 3, 6 or 8 years. (Penal Code 264.)
This bill would enact a new crime providing that any person 18
years of age or older who engages in sexual intercourse or
sodomy with a child who is 10 years of age or younger is guilty
of a felony and shall be punished by imprisonment in the state
prison for a term of 25 years to life.
Increased Parole Period for Persons Convicted of Violent Sex
Crimes
Existing law generally provides that inmates serving a
determinate term of imprisonment shall be released on parole for
a period of three years. Specified sex offenders (those
released after serving a determinate term of imprisonment and
specified in this bill) shall be released on parole for a period
of five years. Specified sex offenders (those released by the
Board of Prison Terms following an indeterminate term of
imprisonment and specified in this bill) shall be released on
parole for a period of five years subject to an additional
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five-year period of parole, as specified. (Pen. Code 3000,
subd. (b)(1) and (3).)
This bill increases parole for persons convicted of violent sex
crimes - sex offenses included in the list of violent crimes in
Penal Code Section 667.5, subdivision (c) - to 10 years.
This bill further provides that a person released on parole for
10 years for a violent sex crime can be held on parole and in
custody (for parole violations) for a total of 15 years.
One-Strike (Life-Term) Sentencing for Oral Copulation or
Sexual Penetration of a Child (Other than Rape)
Existing Law
Existing law includes the "one-strike" sex crime sentencing law
that provides sentences of 15 years or 25 years to life in
certain sex crimes if specified circumstances in aggravation are
found to be true. (Pen. Code 667.61.)
Existing law states that the qualifying sex crimes under the
"one-strike" sex law are forcible rape, forcible spousal rape,
rape by a foreign object, forcible sodomy, forcible oral
copulation, specified sex crimes in concert, lewd and lascivious
acts with a child under the age of 14 accomplished by force or
duress, and lewd and lascivious acts with a child under the age
of 14 accomplished by other than force or duress where the
defendant is not eligible for probation. (Pen. Code 667.61,
subd. (c).)
Existing law provides that if one of the enumerated aggravating
factors set out in Section 667.61, subdivision (d), is found to
be present, the qualifying sex offense is punishable by a term
of 25 years to life. (Pen. Code 667.61, subd. (a).)
Single Factor - 25 years to life :
Defendant was previously convicted of one of the qualifying
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sex offenses
Defendant kidnapped the victim substantially increasing the
risk of harm
Defendant inflicted aggravated mayhem or torture
The crime involved residential burglary with the intent to
commit a sex offense
Existing law provides if one of the enumerated aggravating
factors in Section 667.61, subdivision (e) is found to be
present, the qualifying sex offense is punishable by a term
of 15 years to life. If the crime involves two or more of
these factors, the defendant shall receive a term of 25 years
to life. (Pen. Code 667.62, subds. (a)-(b).)
One Factor - 15 years to life; Two Factors - 25 years to life :
Defendant committed the offense in the course of a
residential burglary
Defendant kidnapped the victim
Defendant personally used a dangerous or deadly weapon
Defendant inflicted great bodily injury
The victim was tied or bound
The crime involved more than one victim
The defendant administered a controlled substance by force,
violence or fear.
(Pen. Code 667.61, subd. (e).)
Existing law provides that any person who commits a lewd or
lascivious act with a child under the age of 14 years shall be
imprisoned in state prison for 3, 6 or 8 years. (Pen. Code
288.)
This Bill
This bill adds two new crimes to the crimes subject to
one-strike sentencing: oral copulation involving a child under
the age of 10 and sexual penetration of a child under the age of
10. This bill adds corresponding aggravating one-strike factors
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applicable where the child orally copulated the adult
perpetrator and where the adult sexually penetrated the child,
respectively.
Additional One-Strike Crimes and One-Strike Organization
This bill defines as one-strike crime the use of credible
threats of future retaliation to commit rape (including spousal
rape) or oral copulation and sodomy.
This bill defines as one-strike crimes the following forms of
oral copulation in concert: oral copulation in concert by force
or coercion, credible threats of future retaliation and where
the victim is mentally disordered, developmentally disabled or
physically disabled.
This bill defines as one-strike crimes the following forms of
sodomy in concert: sodomy in concert by force or coercion and
by credible threats of future retaliation.
Elimination of Sentencing Credits for One-Strike Inmates
Existing law provides that a defendant sentenced to a term of
imprisonment of either 15 years to life or 25 years to life
under the provisions of the "one-strike" sentencing scheme
shall not have his or her sentence reduced by more than 15% by
good-time/work-time credits. (Penal Code 667.61, subd.
(j).)
This bill eliminates conduct/work credits for inmates sentenced
under the one-strike law.
This bill eliminates a provision allowing probation for a person
convicted under the one-strike law if the person qualifies for
probation under Penal Code Section 1203.066, which allows
probation for persons convicted of lewd conduct only under
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limited circumstances.<4>
Continuous Sexual Abuse of a Child as a One-Strike Crime
Existing law provides that "continuous sexual abuse of a child"
is committed where a person who has recurring access to a child
engages in three or more acts of "substantial sexual conduct" or
lewd conduct with a child under the age of 14 over a period of
at least three months' time. It is punished by a prison term of
6, 12 or 16 years. (Pen. Code 288.5.)
This bill adds continuous sexual abuse of a child as a
one-strike crime.
Aggravated Kidnapping (for Purposes of Sex Crime) - Life
Terms
Existing Law
Existing law generally defines kidnapping as the taking and
carrying away of another by force or fear, and punishes this
crime by imprisonment in the state prison for 3, 5, or 8 years.
The element of carrying away is defined as "asportation." (Pen.
Code 207, subd. (a), and 208, subd. (a); People v. Martinez
(1999) 20 Cal.4th 225.)
Existing law does not require asportation in kidnapping for
ransom. Kidnapping for ransom can be proved by false
imprisonment and ransom demands. Kidnapping for ransom is
punishable by life in prison without parole where the victim
dies, suffers bodily harm, or is subjected to a substantial
likelihood of death, and by life with the possibility of parole
---------------------------
<4> As one-strike factors are charged by the district attorney,
the prosecutor can effectively control whether a defendant may
be eligible for probation for a sex crime. For the most part,
the prosecutor's charges control whether a defendant is eligible
for probation for lewd conduct, per se.
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in other circumstances. (People v. Anderson (1979) 97
Cal.App.3d 419, 425; Pen. Code 209, subd. (a).)
Existing law provides that "aggravated kidnapping" - kidnapping
for robbery, rape or spousal rape, oral copulation, sexual
penetration or sodomy, where the movement of the victim
substantially increased the risk of harm beyond that inherent in
the underlying offense - is punishable by imprisonment in the
state prison for life with the possibility of parole. (People
v. Martinez (2000) 20 Cal.4th 225; Pen. Code 209, subd. (b).)
Existing law , as set out in the kidnapping for robbery case of
People v. Rhoden (1972) 6 Cal.3d 519, provides that aggravated
kidnapping requires that the movements of the victim have been
accomplished by force, rather than by fraud or the like.
Existing law provides that a person committed to prison for life
cannot be granted parole for 7 years, unless a longer period of
time is specified. (Pen. Code 3046.)
Existing law provides that any person who commits a lewd or
lascivious act with a child under the age of 14 years shall be
imprisoned in state prison for 3, 6 or 8 years. (Pen. Code
288.) Where force or duress was used the court can or must
impose fully consecutive terms for each separate count. (Pen.
Code 667.6, subds. (c) and (d).)
Existing law defines a lewd act with a child as:
Any touching (through clothing or on the skin) of a child
(by the defendant or by the child at the instigation of
the defendant);
Done for sexual gratification (of the perpetrator or the
child). (People v. Martinez (1995) 11 Cal.4th 434, 452.)
While lewd conduct generally involves sexually motivated
touching of a child's breasts, buttocks or external sexual
organs, lewd conduct may involve sexually motivated
touching of any part of the body with sexual intent.
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(Ibid.)
Defined sex crimes (rape, oral copulation, etc.) may also
be charged as lewd conduct. (People v. Pearson (1986) 42
Cal.3d 351.)
Existing law defines two forms of lewd conduct with a child
under the age of 14: 1) Where the crime is accomplished by
force, fear, duress or menace. 2) Where no force, fear,
duress, etc., is used. The sentence for the crime itself is the
same whether or not force or duress was used. However, numerous
other consequences apply based on whether or not the crime
involved force or duress. (Pen. Code 288, subds. (a)-(b).)
Existing law , as interpreted by the courts, defines or describes
force, duress and menace thus:
Force : The majority of cases hold that the element of
"force" is shown by force that allowed the defendant to
accomplish the act without the child's consent. (People v.
Neel (1993) 19 Cal.App.4th 1784.)
Duress : Direct or implied threat of force, violence, danger,
hardship or retribution sufficient to allow commission of the
act. The jury shall consider all of the circumstances in
determining whether duress was proved, including the age of
the victim and his or her relationship to the defendant.
(People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.) (e.g., a
threat to send a child to bed without dinner would appear to
constitute duress.)
Existing law provides that lewd conduct with a child of 14 or 15
years of age (regardless of whether or not force or fear was
used), where the defendant was more than 10 years older than the
victim, is an alternate felony-misdemeanor punishable by
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SB 1128 (Alquist)
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imprisonment in the county jail for up to 1 year or in state
prison for "one, two or three years." (Pen. Code 288, subd.
(c).
(Note: The standard triad for a felony is 16 months, 2 years or
3 years.)
Existing law provides that a caretaker of a dependent adult who
commits a lewd act with the dependent person by means of force
or duress is guilty of a felony punishable by 3, 6 or 8 years in
prison. Where force or duress is not used, the perpetrator is
guilty of an alternate felony-misdemeanor punishable by
imprisonment in the county jail for up to 1 year or in state
prison for "one, two or three years." (Pen. Code 288, subds.
(b)(2) and (c)(2).)
Existing law provides that a person who commits rape, spousal
rape or sexual penetration (other than rape) in concert (by two
or more perpetrators) shall be punished by imprisonment for 5,
7, or 9 years. It appears that a person who commits a sex crime
in concert is necessarily guilty of the underlying crime.
This Bill
This bill adds undefined lewd conduct ( 288) and rape or sexual
penetration in concert ( 264.1) to the target crimes of
aggravated kidnapping.
Assault with Intent to Commit a Sex Crime or Mayhem
during a Residential Burglary (Sec. 5)
Existing law provides that "any person who assaults another
with the intent to commit mayhem, rape, sodomy, oral
copulation, or any violation of Section 264.1 [rape or sexual
penetration in concert with others], 288 [lewd conduct with a
child or dependent adult] or 289 [sexual penetration]" is
guilty of a felony, punishable by imprisonment for 2, 4 or 6
years. (Pen. Code 220.) Assault with intent to commit a sex
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SB 1128 (Alquist)
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crime has been described as an aggravated form of an attempt to
commit a sex crime - the aggravation being the assault, which
is defined as the intent to commit a violent injury.
This bill provides that a person who, during the commission of a
residential burglary, commits assault with intent to commit
specified sex crimes (rape or sexual penetration in concert,
rape, sodomy, oral copulation, lewd conduct and sexual
penetration) is guilty of a felony and shall be punished by
imprisonment for life with the possibility of parole, regardless
of whether or not the defendant intended to commit a sex crime
when he entered the residence.
Aggravated Sexual Assault of a Child (Sec. 6)
Existing law (Pen. Code 269) provides that where the defendant
commits a specified sex crime by force or coercion against a
victim who is under 14 years of age, and where the defendant is
more than 10 years older than the victim, is guilty of
aggravated sexual assault of a child and shall be imprisoned for
a term of 15 years to life. The crimes included in aggravated
sexual assault of a child are: specified sex crimes in concert
(two or more perpetrators), sodomy, oral copulation, sexual
penetration.
This bill reduces the age difference between the perpetrator and
the victim in this crime from 10 to 7 years.
This bill includes an aggravated sexual assault of a child the
specified sex crimes when committed by credible threats to
retaliate in the future against the victim or another person.
This bill requires consecutive sentencing for each count of
conviction if the crimes involved separate victims or the same
victim on separate occasions.
Continuous Sexual Abuse of a Child as a One-Strike Crime
and Elimination of Specified Multiple Punishment
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Restrictions in Continuous Sexual Abuse Cases (Sec. 8)
Existing law provides that "continuous sexual abuse of a child"
is committed where a person who has recurring access to a child
engages in three or more acts of "substantial sexual conduct" or
lewd conduct with a child under the age of 14 over a period of
at least three months' time. It is punished by a prison term of
6, 12 or 16 years. (Pen. Code 288.5.)
This bill adds continuous sexual abuse of a child as a
one-strike crime.
Existing law provides that a defendant who is charged with
continuous sexual abuse of a child cannot be charged with any
"other felony sex offense" against the same victim that occurred
during the period of times that the continuous sexual abuse
occurred.
This bill provides that a defendant who commits sex crimes other
than the conduct that constitutes continuous sexual abuse of a
child (three acts of substantial sexual conduct or three acts of
lewd conduct over at least three months' time), the defendant
can be separately prosecuted and punished for the other sex
crimes. This change responds to appellate decisions barring
prosecution for any sex crimes, other than the continuous sexual
abuse of the child, that occurred within the time period when
the continuous abuse occurred.<5>
Habitual Sexual Offender Law (Sec. 43)
Existing law (the habitual sexual offender law) provides that a
---------------------------
<5> For example, if the defendant is charged with continuous
sexual abuse involving three acts of touching of the child's
genitals, and the defendant also committed forced sodomy during
that time period, under the current language the defendant could
not be punished for sodomy. This bill eliminates that
limitation.
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SB 1128 (Alquist)
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person previously convicted of specified sex crimes or convicted
of kidnapping of a child for lewd conduct who is convicted in
the current case of one of those offenses shall be sentenced to
a term of 25 years to life on each count of conviction. (Pen.
Code 667.71)<6> The prior qualifying crimes are:
Rape/spousal rape by force, duress, etc. (Pen. Code 261,
subd. (a)(1), 262, subd. (a)(1))
Rape or sexual penetration in concert (Pen. Code 264.1)
Lewd conduct with a child under 14 (Pen. Code 288, subds.
(a)-(b)
Sexual penetration (Pen. Code 289, subd. (a))
Continuous sexual abuse (Pen. Code 288.5)
Sodomy by force or duress, etc. (Pen Code 286)
Sodomy in concert (Pen. Code 286, subd. (d))
Oral copulation by force, duress, etc. (Pen. Code 288a,
subds. (c)-(d))
Kidnapping a child under 14 for lewd conduct by seduction,
misrepresentation, etc.
(Pen. Code 207, subd. (b))
Kidnapping for sex crimes (former Pen. Code 208, subd. (d))
Aggravated kidnapping for purposes of specified sex crimes
(Pen. Code 209)
Aggravated sexual abuse of a child (Pen. Code 269)
Conviction in other jurisdiction with elements of an offense
described above.
Existing law , as set out in relevant decisional law, provides
that the life term imposed under the habitual sexual offender
law shall be imposed in conjunction with a Three Strikes
sentence or the one-strike law, although not a combination of
---------------------------
<6> The prior crimes subjecting a person to habitual sexual
offender penalties constitute prior "strikes" for purposes of
the Three Strikes law. The interaction of the two laws, as well
as the one-strike law, can produce sentences of well over 100
years. (People v. Murphy (2001) 25 Cal.4th 136 - 160 years to
life for two counts of non-forced lewd conduct where defendant
had two prior similar convictions.)
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SB 1128 (Alquist)
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all three. (People v. Murphy, supra, 25 Cal.4th at pp. 140-141;
People v. Snow (2003) 105 Cal.App.4th 271, 281-283.)
Existing law prohibits or severely restricts probation for
persons convicted of sex crimes. Generally, persons convicted
of sex crimes by force, fear or duress cannot receive probation.
In numerous cases where probation may be granted (e.g. rape,
sodomy or oral copulation by using the authority of public
office to arrest or deport another, or assault with intent to
commit a sex crime), the court must state on the record the
unusual circumstances justifying probation. (Pen. Code
1203.065.)
Existing law requires a court to fully evaluate a defendant's
application for probation, including holding a hearing to
determine if the defendant poses a threat to the victim, in
specified sex crime convictions where probation may be granted.
(Pen. Code 1203.067.)
This bill prohibits a court from granting a defendant probation
or exercising its discretion to dismiss a prior conviction
allegation in an habitual sexual offender case.
This bill provides that habitual sexual offender allegations
shall be set out in the "accusatory pleading," rather than the
"information," as provided in existing law.
This bill expands the oral copulation convictions subject to
the habitual sexual offender law by eliminating the
requirement that in specified forms of the crime that the
crime be accomplished by force, duress or fear of immediate
bodily injury. The affected forms of the crime include 1)
oral copulation where the victim is under 14 years of age and
the perpetrator is more than 10 years older than the victim
(Pen. Code 288a(c)(1)); 2) oral copulation through credible
threats of future retaliation (Pen. Code 288a(c)(3); and 3)
or oral copulation in concert (multiple perpetrators) through
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SB 1128 (Alquist)
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threats of future retaliation or where the victim of the crime
cannot give consent because of a disability or mental
disorder, or oral copulation.
This bill expands the sodomy convictions subject to the
habitual sexual offender law by eliminating the requirement
that in specified forms of the crime that the crime be
accomplished by force, duress or fear of immediate bodily
injury. The affected forms of the crime include 1) sodomy
where the victim is under 14 years of age and the perpetrator
is more than 10 years older than the victim (Pen. Code
288a(c)(1)); 2) sodomy through credible threats of future
retaliation (Pen. Code 288a(c)(3); and 3) or oral copulation
in concert (multiple perpetrators) through threats of future
retaliation.
This bill adds sexual penetration (other than rape) where the
victim is under 14 years of age and the perpetrator is more than
10 years older than the victim (Pen. Code 289, subd. (j)) to
the habitual sexual offender law. (Under existing law where a
defendant has been convicted of this form of sexual penetration
and the victim is under the age of 10 the prosecution can seek a
sentence of 25 years to life for a first conviction. Where the
victim is over the age of 10, the court shall impose a term of 25
years to life for a second conviction.) (Pen. Code 289, subd.
(j)(2).)
This bill eliminates sentencing credits that under existing law
can reduce a defendant's minimum term by up to 15%.
This bill makes technical changes to various statutory
references.
Violent Felony List - Limits on Prison Sentencing
Credits, Definition of Prior Strikes and Other Consequences
(Sec. 39)
Existing law defines specified crimes as "violent felonies,"
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from which designation numerous consequences flow, including
that violent crimes (in addition to "serious felonies")
constitute prior "strikes" for purposes of the Three Strikes law
and that an inmate serving a sentence for a violent felony can
earn no more than 15% sentencing credits to reduce his or her
sentence.<7> (Pen. Code 667.5, subd. (c).)
Existing law includes a largely anachronistic provision
requiring a three-year enhancement for each prior violent felony
conviction where a defendant is convicted in the current case of
a violent crime. This enhancement has been effectively
superseded by the Three Strikes law, which imposes much higher
prison terms for defendants convicted of violent offenses.
Existing law includes as violent felonies, in addition to very
numerous other offenses, violent felony and sodomy accomplished
by force or coercion.
This bill expands the violent felony list to include sodomy, or
oral copulation or sexual penetration (other than rape) in which
the victim is under that age of 14 and the perpetrator is more
than 10 years older than the victim.
This bill expands the violent felony list to specifically
include in-concert sodomy or oral copulation accomplished by
force or coercion (although any form of forced or coerced sodomy
or oral copulation is included in the existing violent felony
list), or in-concert sodomy or oral copulation by a credible
threat to retaliate.
This bill includes as a violent felony any sodomy or oral
copulation or sexual penetration (other than rape) accomplished
through a credible threat to retaliate against the victim or
another person in the future.
This bill includes as a violent felony oral copulation in
---------------------------
<7> Defendants serving a life term (third strike) Three Strikes
sentence can earn no sentencing credits.
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SB 1128 (Alquist)
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concert where the victim is mentally disordered, developmentally
disabled or physically disabled.
This bill makes a technical change to the reference to lewd or
lascivious conduct with a child (Pen. Code 288.)
This bill makes a technical change to the reference in the
violent felony list to sex crimes in concert.
Enhancement for Administering Controlled Substance in
the Commission of a Felony - Greater Punishment in Sex
Crimes (Sec. 56)
Existing law provides that where the perpetrator of a felony
administers a controlled substance by force or threat of
immediate injury, the defendant's prison sentence shall be
enhanced by three years. (Penal Code 12022.75.)
This bill provides that where the defendant administers a
controlled substance with intent to commit a specified sex
offense, the defendant shall receive a sentence enhancement of
five years. To establish this enhancement, the prosecution need
not show that force or threat was used in the administration of
the controlled substance.
Penal Code Section 667.6 - Special Consecutive
Sentencing Provisions in Sex Crimes; and (Largely
Superseded) 5-Year or 10-Year Sentencing Enhancements
(Secs. 40; 41; 50; 51)
Existing law provides that the court can or must impose fully
consecutive terms for each count of conviction (separate sex
crime) in a sex crimes prosecution involving specified offenses.
(Pen. Code 667.6, subds. (c) and (d).) Where the crime
involved multiple victims or where the crimes were committed on
separate occasions, the court must impose consecutive terms.
Crimes occurred on separate occasions where the defendant had an
opportunity to reflect between two crimes.
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Existing law provides that where a defendant is convicted of a
specified sex offense and has been previously convicted of such
an offense, the defendant shall receive a sentence enhancement
of five years. Where the defendant has been previously
convicted of two or more such offense, the sentence enhancement
shall be 10 years. (Penal Code 667.51.)
This bill adds various forms of sex crimes, such as commission
of sodomy, oral copulation or sexual penetration other than rape
by threats to retaliate in the future, to consecutive sentencing
provisions of Section 667.6, subdivisions (c) and (d).
Existing law prohibits probation where the defendant is
convicted of specified crimes - murder, robbery, kidnapping,
residential burglary, torture, rape, assault to commit a sex
crime and others - in which the defendant used a firearm.
Further, where the defendant was previously convicted of such a
crime, and was convicted in the current case of a crime in
which the defendant used a firearm, probation is prohibited.
(Pen. Code 1203.06.) Section 1203.06 also prohibits
probation for a person convicted of aggravated arson.
This bill adds numerous sex crimes - sodomy, oral copulation,
sexual penetration (other than rape), aggravated sexual
assault of a child - to the firearm-use probation prohibition
in Section 1203.06.
This bill prohibits the court from relying on Section 1385 so as
to dismiss an allegation that would bring the defendant within
the probation bar in Section 1203.06, the provision barring
probation for the use of a firearm during the commission of
specified felonies. (Penal Code Section 1385 authorizes a court
to dismiss any action, or any portion thereof, in the interests
of justice, unless the Legislature has clearly prohibited the
court from exercising such discretion.)
This bill strikes a provision that does not prohibit adjournment
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of criminal proceedings pursuant to Welfare and Institutions
Code sections concerning commitments to state mental hospitals.
(It appears that the provision in existing Section 1203.06
applied to the former Mentally Disordered Sexual Offenders' law,
under which persons were committed for mental health treatment
rather than being sent to prison.)
Existing law prohibits probation for defendants convicted of
specified sex crimes committed by force or coercion. (Pen. Code
1203.065, subd. (a).) Section 1203.065 also prohibits
probation in specified pimping and pandering offenses.
This bill adds specified sex crimes committed through credible
threats of future retaliation (rape, sodomy, oral copulation or
sexual penetration other than rape) and specified crimes
committed in concert (sodomy or oral copulation) to the
probation prohibitions of Section 1203.065.
This bill adds aggravated sexual assault of a child to the
probation prohibition provisions in Section 1203.065.
Probation Prohibitions (Secs. 50; 52)
Existing law prohibits probation where the defendant is convicted
of specified crimes - murder, robbery, kidnapping, residential
burglary, torture, rape, assault to commit a sex crime and others
- in which the defendant used a firearm. Further, where the
defendant was previously convicted of such a crime, and was
convicted in the current case of a crime in which the defendant
used a firearm, probation is prohibited. (Pen. Code 1203.06.)
Section 1203.06 also prohibits probation for a person convicted of
aggravated arson.
This bill adds numerous sex crimes - sodomy, oral copulation,
sexual penetration (other than rape), aggravated sexual assault
of a child - to the firearm-use probation prohibition in Section
1203.06.
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This bill prohibits the court from relying on Section 1385 so as
to dismiss an allegation that would bring the defendant within
the probation bar in Section 1203.06, the provision barring
probation for the use of a firearm during the commission of
specified felonies.<8>
This bill strikes a provision that does not prohibit adjournment
of criminal proceedings pursuant to Welfare and Institutions
Code sections concerning commitments to state mental
hospitals.<9>
Existing law prohibits probation for defendants convicted of
specified sex crimes committed by force or coercion. (Pen. Code
1203.065, subd. (a).) Section 1203.065 also prohibits
probation in specified pimping and pandering offenses.
This bill adds specified sex crimes committed through credible
threats of future retaliation (rape, sodomy, oral copulation or
sexual penetration other than rape) and specified crimes
committed in concert (sodomy or oral copulation) to the
probation prohibitions of Section 1203.065.)
This bill adds aggravated sexual assault of a child to the
probation prohibition provisions in Section 1203.065.
Existing law prohibits probation for persons convicted of
specified crimes in which the defendant, intending to inflict
great bodily injury, did in fact inflict such injury.
This bill adds commission of a lewd act with a child under the
---------------------------
<8> Penal Code Section 1385 authorizes a court to dismiss any
action, or any portion thereof, in the interests of justice,
unless the Legislature has clearly prohibited the court from
exercising such discretion.
<9> It appears that the provision in existing Section 1203.06
applied to the former Mentally Disordered Sexual Offenders' law,
under which persons were committed for mental health treatment
rather than being sent to prison.
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SB 1128 (Alquist)
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age of 14, lewd acts with a person who is 14 or 15 years of age,
or lewd acts with a dependent adult to the probation prohibition
provisions in Section 1203.075.
This bill adds continuous sexual abuse of a child to the
probation prohibition provisions in Section 1203.075.
This bill makes additional related and technical changes to
Section 1203.075.
Qualifying Prior Convictions under the Three Strikes Law
(Secs. 37 and 45)
Existing law provides that a criminal defendant who is convicted
of any felony, and who has been convicted of two or more
"serious" (Pen. Code 1192.7, subd. (c)) or "violent" (Pen.
Code 667.5, subd. (c)) felonies shall be imprisoned for a term
of at least 25 years to life. Where the defendant has a single
prior serious or violent felony conviction, the defendant's term
in the current case is doubled.
Existing law provides that qualifying prior serious and violent
convictions (prior strikes) are those crimes so defined as of
March 2000 - the date of the enactment of Proposition 21 of the
March, 2000 Primary Election. (Pen. Code 667, subds.
(b)-(i), 667.1, 11170.12 and 1170.125.)
This bill defines qualifying prior strikes as those offenses
defined as serious or violent as of the effective date of this
bill.
Prohibition on Traditional Judicial Discretion to
Dismiss an Action or any Part Thereof in this Bill
Existing law grants trial courts, as an inherent judicial
function, the authority to dismiss a criminal action or any part
thereof in the interests of justice. (Pen. Code 1385.)
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Existing decisional law provides that court discretion under
Section 1385 can only be prohibited or limited by clear and
explicit legislative or initiative language. (People v.
Superior Court (1996) 13 Cal.4th 497.) In Romero, the Supreme
Court held that the Three Strikes law did not clearly prohibit
judicial discretion to dismiss a prior qualifying conviction.)
Existing law does include statutes, such as the 10-20-life
firearm enhancements - that clearly and explicitly prohibit
Section 1385 discretion.
This bill prohibits a court from exercising discretion under
Section 1385 where the defendant is convicted under the habitual
sexual offender law and explicitly prohibits the exercise of
discretion under Section 1385 in other circumstances where
discretion is currently limited or barred, such as the
one-strike law and the ban on probation where the defendant used
a gun.
SEX OFFENDER REGISTRATION (Sec. 11)
Current law generally requires people who have been convicted of
specified sex offenses to register at least annually with the
chief of police of the city in which he or she is residing, or
the sheriff of the county if he or she is residing, in an
unincorporated area or city that has no police department, and,
additionally, with the chief of police of a campus of the
University of California, the California State University, or
community college if he or she is residing upon the campus or in
any of its facilities, within five working days of coming into,
or changing his or her residence within, any city, county, or
city and county, or campus in which he or she temporarily
resides, for the rest of his or her life while residing in
California, or while attending school or working in California,
as specified. (Penal Code 290.)
This bill would require the registering agency to give the
registrant a copy of the completed Department of Justice form
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each time the person registers or reregisters, including at the
annual update.
This bill would require that on or before January 1, 2010, the
Department of Justice shall renovate the VCIN to do the
following:
(1)Correct all software deficiencies affecting data integrity
and include designated data fields for all mandated sex
offender data.
(2)Consolidate and simplify program logic, thereby increasing
system performance and reducing system maintenance costs.
(3)Provide all necessary data storage, processing, and search
capabilities.
(4)Provide law enforcement agencies with full Internet access
to all sex offender data and photos.
(5)Incorporate a flexible design structure to readily meet
future demands for enhanced system functionality, including
public Internet access to sex offender information pursuant
to Section 290.46.
MEGAN'S LAW
Under current law, the Department of Justice ("DOJ") is required
to make information about registered sex offenders available to
the public via an Internet Web site, as specified. (Penal Code
290.46.) DOJ is required to include on this Web site a
registrant's name and known aliases, a photograph, a physical
description, including gender and race, date of birth, criminal
history, any other information that the Department of Justice
deems relevant unless expressly excluded under the statute.
(Id.)
This bill would require the Web site to display the risk
assessment tier level for each posted registrant who has been
assessed by the STATIC-99.
This bill would provide that if no risk assessment has been
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done, the Web site shall state, "Risk Level-Not Yet Assessed."
This bill would require specified entities which perform risk
assessments to provide DOJ with risk assessment information
about registrants, as specified.
This bill would require that the Web site display the date of
conviction and the date of release from incarceration or
commitment for each posted registrant. This bill additionally
would require that the Web site also post, in a separate section
from those listing current registered sex
offenders, the names and reported state of destination, if any,
of former registrants who have been deported or moved out of
state.
This bill would require that the Web site display any prior
adjudication as a sexually violent predator.
This bill adds crimes to the Internet Web site requirements
which would be enacted by this bill, as specified.
Current law provides a mechanism for certain registered sex
offenders to apply to DOJ to be excluded from the Megan's Law
Web site. This potential exclusion includes Section 647.6
(child annoyance,) provided the offense is a misdemeanor.
This bill would revise the misdemeanor child annoyance
provision to apply only if the person has a risk assessment
level of low or moderate-low.
This bill additionally would require DOJ to periodically review
the list of persons excluded and, if DOJ determines that a
person who was granted an exclusion under a former version of
this subdivision would not qualify for an exclusion under the
current version of this subdivision, the department would be
required to rescind the exclusion, make a reasonable effort to
provide notification to the person, and, no sooner than 30 days
after notification is attempted, make information about the
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offender available to the public on the Internet Web site.
This bill would require the Attorney General, in collaboration
with local law enforcement and others knowledgeable about sex
offenders, to develop strategies to assist members of the public
in understanding and using publicly-available information about
registered sex offenders to further public safety, as specified.
Preservation of Court Records Concerning Registered Sex
Offenders (Secs. 3 and 58)
Current law generally authorizes trial court clerks to destroy
court records after certain periods of time depending upon the
nature of the record, as specified. (Government Code 68152.)
Criminal records must be retained a specified period depending
upon the nature of the conviction. (Government Code
68152(e); (f).)
This bill would require that records relating to a person
required to register with law enforcement as a sex offender, as
specified, be retained for the life of the person.
This bill would enact a new law providing that a state or local
law enforcement agency shall not destroy any records relating to
a person who is required to register as a sex offender for as
long as the person is living.
FINES; APPLIED TO SAFE TEAMS (Sec. 19)
Existing law provides that every person convicted of any of a
list of specified sex offenses which require lifetime
registration shall, in addition to any imprisonment, fine, or
both, be punished by an additional fine of $200 upon a first
conviction, and $300 upon a subsequent conviction, as specified,
including a finding of ability to pay by the courts; that money
shall be deposited and used by counties with a DNA testing
laboratory for that lab; a percentage of money from those fines
for second or subsequent convictions shall be transferred and
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used by the Department of Justice for the Sexual Habitual
Offender program - monitoring, apprehending, and prosecuting; and
a percentage from all of the fines shall be transferred and used
by the Department of Justice for DNA testing for law enforcement
purposes; and those funds shall be used for other purposes, as
specified. (Penal Code 290.3.)
This bill increases the existing fines to be imposed on those sex
offenders from $200 to $300 for a first offense and from $300 to
$500 for a second offense with an amount equal to $100 for every
fine imposed in excess of $100 to be transferred to CDCR to fund
SAFE Teams, as specified.
Title; Legislative Findings and Declarations
This bill would enact the "Sex Offender Punishment, Control, and
Containment Act of 2006," and makes specified legislative
findings and declarations concerning sex offenders.
COMMENTS
1. Stated Need for This Bill
The author states:
The purpose of the bill is to provide a
comprehensive, proactive approach to preventing
the victimization of Californians by sex
offenders. Under current law, California's
tactical methods and infrastructure are
insufficient for law enforcement to appropriately
assess, convict and monitor sex offenders.
SB 1128 is the product of months of discussion
with, and input from, experts in the area. It
incorporates a broad spectrum of approaches
recognized by law enforcement and avoids key flaws
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that have marred other bills on this subject, such
as residency requirements that dump offenders into
rural communities or provisions that inadvertently
tie the hands of police in performing Internet
sting operations.
SB 1128, the Sex Offender Punishment, Control and
Containment Act of 2006: Increases the prison
term for child rape to 25 years to life; Expands
the Megan's Law database; Toughens penalties for
child pornography; Toughens penalties for
Internet predators; Ensures police can use
on-line decoys to catch Internet predators;
Discourages prosecutors from offering plea
bargains in sex offense cases; Gives state and
local officials a new system to monitor dangerous
parolees; Increases parole time for violent sexual
offenses; Keeps sex offenders away from schools,
parks, and other places where vulnerable
populations, including the elderly and disabled,
congregate.
By taking this comprehensive approach SB 1128 will
make all of California's communities safer from
all sexual predators, not just some.
2. What This Bill Does
This is a wide-ranging measure which amends or enacts numerous
statutory provisions concerning sex crimes pertaining to
penalties, offender risk assessments, prevention, supervision
and civil commitment. Broadly, the bill contains provisions in
the following areas:
Child luring;
Sex offender loitering around school grounds and other
places;
Child pornography;
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Child safety programs;
SAFE teams;
Recidivism risk assessments for registered sex
offenders;
Enhanced parole and probation provisions for sex
offenders;
Extended parole periods for all violent sex offenses;
Prosecution of sex offenses and plea bargains;
Sexually violent predators;
Sentencing provisions for sex offenses;
Updated Megan's Law database and increased
information on the Megan's Law Web site; and
Sex offender registration.
As set forth in detail above and discussed below, this bill
contains many of the largely technical sentencing provisions
contained in SB 588 (Runner), heard by the Committee earlier
this year. This bill differs from the Runner bill (and the
Runner initiative recently submitted to the Secretary of State
for signature verification) in the following major ways:
This bill does not contain the 2000 foot school and park
residency ban on registered sex offenders contained in SB
588;
This bill proposes a child luring crime which, unlike SB
588, includes within its scope police stings where
non-minors are used;
This bill proposes indeterminate sentencing for sexually
violent predators who have been civilly committed with
minimum constitutional guarantees not included in SB 588;
This bill closes the parole tolling loophole that
currently exists in the SVP law in a manner more
comprehensive than SB 588;
This bill proposes wide-ranging reforms to several child
pornography statutes, including a sentencing scheme for
child pornography broader and with greater sentence
increases than those proposed by SB 588; and
This bill does not propose GPS for all felony registered
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sex offenders, as does SB 588.
This bill additionally contains provisions not previously
considered by the Legislature, such as a statewide system for
performing recidivism risk assessments on all registered sex
offenders.
3. The Sexually Violent Predator ("SVP") Law: Reflections and
Lessons from the Washington State SVP Program
History - Washington State had the First SVP Law in the
Country
Washington State enacted the first sexually violent predator law
in the country in 1990. As a general rule, these laws allow
civil confinement for treatment of a mental disorder for a
person who was first punished for a sex crime.
Over the last 70 years, however, many states have implemented
laws to commit sex crime perpetrators to mental hospitals
instead of prisons. California's law - the Mentally Disordered
Sex Offender (MDSO) law - has been repealed, but some persons
are still being held in civil confinement for successive,
determinate two-year terms. Washington has had a similar law.
Arguably, California and Washington State have a similar mix of
rural and urban areas. California and Washington are both in
the Federal 9th Circuit. Thus, the same federal appellate
courts hear SVP cases from both states. Important federal
rulings on the Washington law may be instructive to California
lawmakers.
California SVP Law was Drawn in Significant Part from
Washington's Law - Washington has No Determinately
Committed Dangerous, Mentally Disordered Offenders
Because Washington has had an SVP law longer than any other
state, we can perhaps learn from the Washington experience.
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Further, much of the California law was drawn from the
Washington law and adapted to practices in this state. For
example, Washington unlike California, does not have a mentally
disordered offender law. Mentally disordered prison inmates
who may be violently dangerous are subject to closer monitoring
in the community than other parolees. However, parolees who may
be in need of inpatient mental health treatment are not
committed to a state program, while such parolees in California
are committed to a state program while on parole. Dangerous
mentally disordered California parolees can be held in civil
confinement in one-year increments after parole. In Washington,
dangerous parolees who need inpatient care are referred to
county authorities for standard civil commitment. The
equivalent program in California is the LPS commitment process.
Because Washington does not have an MDO program where parolees
are committed under determinate terms, Washington does not have
the same equal protection concerns (the requirement that
similarly situated persons be treated in an equivalent manner
under the law) arising from indeterminate SVP commitments.
Washington has Time Limits (Extended with Good Cause)
for Bringing SVP Cases to Trial
Washington State, unlike California, requires that an SVP trial
be held within 45 days of the finding of probable cause that a
person may be an SVP. The trial can be continued at the request
of either side upon a showing of good cause. There are no time
limits on bringing SVP cases to trial in California.
SHOULD CALIFORNIA, AS DOES WASHINGTON STATE, REQUIRE AN SVP
TRIAL TO BE HELD WITHIN A CERTAIN AMOUNT OF TIME AFTER A FINDING
OF PROBABLE CAUSE THAT A PERSON IS AN SVP?
The Washington Attorney General Handles Virtually All
SVP Cases, while Local District Attorneys Handle SVP Cases
in California
In Washington, the Attorney General prosecutes SVP cases in 38
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of the 39 counties. SVP cases can thereby be coordinated and
streamlined. The Washington SVP prosecutors know the experts
and issues in this field very well. Attorneys in the office
report that they use discretion in the filing of cases so as to
avoid wasting resources.
In California, each county district attorney handles SVP cases
arising from that county. Different policies and standards can
be followed in each county. Prosecutors and defense attorneys
in Los Angeles can develop deep experience and skill in SVP
cases, while those in smaller counties may have little
experience or skill in these matters. Because of the
constitutional right to a speedy trial in criminal cases,
district attorneys are very likely to place a priority on
felony trials over SVP cases. SVP cases are often delayed for
years, producing absurd results. (An SVP defendant facing a
recommitment trial for the period from, say, 2004-2006, may not
have the case heard until 2007.)
SHOULD PROSECUTION OF SVP CASES BE HANDLED BY A SINGLE STATE
OFFICE (SUCH AS THE ATTORNEY GENERAL), TO DEVELOP AND MAINTAIN
COORDINATION, EXPERTISE AND CONSISTENCY IN SVP CASES, AS HAS
BEEN THE CASE IN WASHINGTON?
Washington Treatment and Conditional Release (Less
Restrictive Alternative) Programs - Federal Court
Contempt Fines and Resulting Compliance with Federal
Orders; State Operated Conditional Release Facilities
Washington State has conditionally released (released to a "less
restrictive alternative" or LRA) 13 people. These persons have
been released to family members or have been placed in special
facilities intended to integrate the SVP patient back into
society. The special facilities have been problematic for
Washington. Initially the only LRA facility was on McNeil
Island, the home of the SVP inpatient (Special Commitment)
center. Another facility will soon open in Seattle.
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The federal courts did not find that the statutory terms of the
treatment program, including the LRA provisions, violated the
Constitution. The federal courts did find that the program, as
implemented, failed to offer adequate treatment. The program
has operated under a federal court injunction for years.
Approximately $14 million in contempt of court fines have
accrued while the state works to provide adequate treatment,
including constructing or opening transitional living facilities
in the community. The state will not have to pay the fines if
the court is satisfied with the progress made in improving
treatment. According to the Washington SCC Web site: "The
court also found that the lack of less restrictive alternative
housing options was a significant issue and ordered the state to
'[make] arrangements?for the community transition of qualified
residents, under supervision, when they are ready for a less
restrictive alternative.'"
Arguably, California should be careful to provide a genuine
opportunity for SVP patients to obtain meaningful treatment and
to be integrated back into the community through conditional
release. Because DMH has had great difficulty finding housing
for SVP patients, perhaps California should consider the use of
state-run transitional facilities. Care must be taken in taking
these steps, as the federal courts may be less understanding of
treatment inadequacies in California after addressing treatment
standards issues over the past 12 years in Washington.
SHOULD CALIFORNIA OPEN STATE-OPERATED TRANSITIONAL FACILITIES TO
HOUSE CONDITIONALLY RELEASED SVP PATIENTS AND HELP INTERGRATE
THEM BACK INTO SOCIETY?
Qualifying Convictions - No Washington State SVP has
been Committed who had a Single Prior Offense
Numerous bills in recent years, and the proposed Jessica's Law
initiative, have proposed that the SVP law be amended to allow
commitment of a person who has been convicted of a single prior
sex offense. Washington State allows commitment with only a
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single offense. However, officials with the Washington program
and in the Attorney General's SVP prosecution office are not
aware of any case in which a person was committed who had only a
single prior conviction. As noted above, Washington prosecutors
exercise discretion in bringing SVP trials. The persons who
have been evaluated in Washington as SVPs have generally had
long histories of sexual offending. It may be a waste of
scarce resources to change California law so as to allow
commitment of persons to the SVP program who have only a single
prior conviction. If such a person has a relatively high risk
of sexual offending, as measured by assessment tools, it is
suggested that close monitoring in the community be done.
Similar issues can be raised about proposals to add more
juvenile adjudications to the list of qualifying SVP crimes.
Experts in the field have concluded that juvenile sex offenders
are different from adult sex offenders. Allowing an adult SVP
commitment to be based on juvenile priors would likely produce
very few commitments from a large increase in the number of
people screened. It must be noted that sexually dangerous
persons who are committed to the Youth Authority can be kept in
civil confinement under Section 1800 of the Welfare and
Institutions Code now. Sexually dangerous persons who would
otherwise be released from Youth Authority control are
committed, similar to SVPs and MDOs, for successive two-year
terms.
Newly Enacted Alternatives to SVP Commitment in
Washington - All Sex Offenders Convicted of Contact
Offenses are Indeterminately Sentenced, with Varying
Minimum Terms
According to the Washington Attorney General's office,
Washington has recently passed a law requiring indeterminate
prison terms for defendants convicted of all contact sex
offenses. The minimum term in prison is determined from a grid,
with one axis being the seriousness of the offense and the other
being the defendant's record. Sex offenders are offered
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treatment in prison. This change in law will force Washington
to substantially expand its parole board system. A similar
change in California could be very problematic, as parole
hearings are routinely delayed for months or years in
California. It appears that the California courts may soon
intervene to force more expedited handling of parole hearings.
SHOULD CALIFORNIA CONSIDER MAKING ALL SEX CRIMES IN CALIFORNIA
SUBJECT TO INDETERMINATE TERMS?
The indeterminate commitment provisions in this bill are drawn
from the Washington law. Unlike some other proposals made in
California for indeterminate commitments, the Washington law
appears to comply with constitutional due process requirements
by giving SVP patients a reasonably full, annual opportunity for
court review of the commitment. The due process issue is
discussed below.
4. Civil Commitment Schemes Based on Dangerousness and Mental
Disorders - Including SVP Laws - Must Provide Due Process,
Including Reasonable Access to the Courts and Court Review of
Status
In 2005, the California Supreme Court considered the civil
commitment scheme (Welf. & Inst. Code 1800 et seq.) for
mentally disordered and dangerous persons who would otherwise be
released from Youth Authority parole. In this case, In re
Howard N. (2005) 35 Cal.4th 117, the Court discussed the need
for due process in civil commitment schemes generally.
Commitment under Section 1800 is similar in many respects to
commitment under the SVP law. Howard N. includes important
discussions about the SVP Act. The court stated:
The [United States Supreme] court has repeatedly
recognized that civil commitment for any purpose
constitutes a significant deprivation of liberty that
requires due process protectionNevertheless, [s]tates
have in certain narrow circumstances provided for the
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forcible civil detainment of people who are unable to
control their behavior andpose a danger to [others]."
The high court has "consistently upheld such
involuntary commitmentprovided the confinement takes
place pursuant to proper procedures and evidentiary
standards."
.[T]he high court has"sustained civil commitment
statutes when they have coupled proof of dangerousness
with the proof of some additional factor, such as a
'mental illness' or'abnormality. [Citations.]
Theserequirements serve to limit involuntary civil
confinement to those who suffer from a volitional
control."
We employed a similar approachin Hofferber. In that
case, we concluded that "the state may confine
incompetent criminal defendants, on grounds that they
remain violently dangerous We observed, however,
that the relevant statutes did "not expressly require
a showing of continuing dangerousness," but appeared
"to permit indefinite maintenance of
[Lanterman-Petris-Short Act] conservatorships solely
because the incompetence continues and the violent
felony charges have not been dismissed." Therefore,
in order to preserve the constitutionality of the
statutory scheme, we construed it to require current
dangerousness. . (Id, at pp. 127-129, 134-135;
citations omitted; bold type added, italics in
original.)
The court in Howard emphasized that the state must
demonstrate the current dangerousness of a civilly
committed person. That requirement is met in the many
California commitment statutes by recommitment trials or
hearings after set period of time. (Id, at p. 131,
133-135.) It seems clear that continuing dangerousness
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must be demonstrated on some regular basis under an
indeterminate commitment, even where the law does not
require the entire original commitment process to be
repeated as though the person had never been committed.
The ruling of the court in In re Howard N. can clearly be
read as requiring access to the courts and a process for
renewing commitments that provide due process. That is, a
scheme where a person is indeterminately committed and
under which the person cannot obtain meaningful review the
commitment, or where the person cannot challenge continuing
commitment through a showing of changed circumstances,
would be subject to serious due process attacks.
The indeterminate scheme in this bill is modeled on the
Washington State indeterminate commitment process. Under
that scheme, as under the equivalent terms of this bill, an
SVP patient must be evaluated every year. The patient can
file a petition for conditional or unconditional release
with or without the support of the state treatment program
authorities. If the state fails to present a prima facie
case that the person must be confined because he remains
sexually dangerous because of a mental disorder, or if the
patient establishes probable cause that those conditions no
longer exist, a trial must be held. At the trial, the
state must prove beyond a reasonable doubt that the person
must continue to be confined, or the state must prove that
the person cannot be safely released in the community under
supervised, conditional release.
Further, because it appears that the state has a continuing
responsibility to justify commitment, unless the person
waives the right to an annual non-appearance show-cause
hearing the court shall review the issue of whether a prima
facie case exists that continuing confinement is necessary.
It appears that the so-called Jessica's Law bills and
initiative only provide that an SVP patient can obtain
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certain judicial review with the approval of the director
of DMH. Should that approach be enacted, it would be
subject to serious due process attack. Under the Jessica's
Law commitment review scheme, a patient can file a petition
without the approval of DMH. However, it appears that the
patient can only seek conditional release without the
approval of DMH. Further, the court can deny the patient's
petition without any hearing if the court finds that the
petition is frivolous. It is not clear that the court
would have to make any particular finding in denying the
petition without a hearing.
Legislators should be aware that in prior years, a number
of urgency bills were introduced and enacted when courts
found errors or problems with the SVP law. For example,
the law originally did not provide for holding inmates who
had not been evaluated as possible SVPs by the time they
would have been released from prison on parole. Had the
Legislature not acted so as to allow a 45-day hold to
complete evaluations, prospective SVPs would have been
released on parole and not subject to commitment. If an
indeterminate scheme is enacted that does not provide due
process, the entire program could be found
unconstitutional. Under such circumstances, the
Legislature may not be able to cure due process errors
before release of SVP patients from the program.
5. The Elephant in the Room - Equal Protection Issues Arising
from Indeterminate SVP Commitments when Similar Commitment
Schemes (e.g., Mentally Disordered Offender Law) use
Determinate Terms
This bill includes a provision that a commitment to the SVP
program would be for an indeterminate period of years. Other
states have indeterminate commitment terms for SVP patients.
However, Washington State, which indeterminately commits SVP
patients, has indeterminate terms for other forensic (initially
arising from criminal matters) mental health commitments.
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California's other forensic mental health commitments are for
set periods of times. Thus, an indeterminate term for
California SVPs would meet a serious challenge based on equal
protection of the law, as SVPs would not be treated similarly
under the law to similarly situated persons like, for example,
Mentally Disordered Offenders.
California appellate courts have held that persons involuntarily
committed under the SVP law are similarly situated to persons
involuntarily committed as Mentally Disordered Offenders and
"other persons involuntarily committed." (People v. Buffington
(1999) 74 Cal.App.4th 1149, 1156.)
A recent example of this analysis involves the issue of
involuntary administration of antipsychotic medication. The
court in In re Calhoun (2003) ) 121 Cal.App.4th 1315,
1353-1354 agreed that SVP defendants and patients are
similarly situated to Mentally Disordered Offenders (MDO), who
are also committed for psychiatric treatment when they would
otherwise be released from prison on parole. The court in
Calhoun noted that involuntary civil commitment affects or
limits the fundamental interest of liberty. In particular,
the court in Calhoun held that SVP patients, just as MDO
patients, have the right to refuse involuntary administration
of antipsychotic medication.
The court in Calhoun explained that where similarly situated
persons are treated differently in regard to a fundamental
interest, the state action will be reviewed with strict
scrutiny:
If a classification scheme is subject to strict
scrutiny because it affects a fundamental interest,
the presumption of constitutionality that would
otherwise pertain falls away, the burden shifts, and
the state must both establish a compelling interest
that justifies the law and also demonstrate that the
distinctions drawn by the law are necessary to
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further that state interest. [Citations.]
Respondent has failed to demonstrate a compelling
state interest that justifies the distinction between
MDOs and SVPs concerning the right to refuse
antipsychotic medication. As discussed above, the
distinction cannot be justified merely because,
unlike an MDO, an SVP's mental disorder must make it
likely that he "will engage in sexually violent
[predatory] criminal behavior." [Citations.] (In re
Calhoun, supra, 121 Cal.App.4th at pp. 1353-1354.)
MDO patients are generally committed for a period of one
year. A person found not guilty by reason of insanity
(NGI) is committed for treatment for a period no longer
than the maximum time he or she could be sentenced for the
underlying crime. If the NGI defendant remains a danger to
others because of a mental disorder at the end of the
initial commitment, he or she can be committed for an
additional period of two years. This bill would require a
substantially longer period of commitment for SVP patients
than similarly situated civilly committed "forensic"
(criminal justice) mental patients.
6. Should the Legislature Make Mentally Disordered Offender
Commitments and Other Forensic Civil Commitments
Indeterminate so as to Avoid or Minimize Equal Protection
Problems
The previous comment discusses equal protection issues that
will arise if SVP patients are committed to indeterminate
terms while other forensic patients are committed to
determinate terms. A "forensic commitment" is one that
involves a person whose mental disorder or illness is
linked to criminal behavior. For example, a mentally
disordered offender was convicted of a violent crime which
was caused or exacerbated by the mental disorder and who
remains dangerous without treatment. As noted above,
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California courts have found that MDOs and SVPs are
similarly situated and must be treated equally under the
law for certain purposes.
It cannot be predicted whether or not the California or
United States Supreme Court would rule that equal
protection bars different forms of commitment
(indeterminate vs. determinate) for SVPs than MDOs and
others subject to forensic civil commitments. Equal
protection litigation on this issue will be very complex,
protracted and expensive.
In such litigation, the state is most likely to argue that
the treatment for SVPs and MDOs and others subject to
forensic civil commitment is necessarily very different.
In particular, MDO patients often suffer from mental
illnesses such as schizophrenia and paranoid-schizophrenia.
These illnesses may be managed or controlled through the
use of antipsychotic medication. Properly medicated MDO
patients may keep their maladies in remission. SVPs are
often diagnosed with mental disorders that cannot be
managed or controlled through medication. Such an argument
may be undercut by the fact that a person convicted of a
violent sex offense can be committed as an MDO. Similar
arguments can be made based on the civil commitments under
Welfare and Institutions Code Section 1800, for dangerous
and mentally disordered persons who would otherwise be
released from Youth Authority control. Such persons are
held for two-year commitments, just as are SVPs under
existing law. Section 1800 commitments often involve
persons who have committed sexual offenses.
Chaos could result if the courts hold that an indeterminate
commitment for SVPs alone violates equal protection. The
courts could order the release of all indeterminately
committed SVPs. The courts could order such release, but
grant the Legislature some time to cure the constitutional
infirmity.
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Should the courts invalidate the indeterminate commitment
process in this bill, none of the outcomes would be
welcome. One could argue that the Legislature should move
to make the similar commitment schemes for forensic civil
commitments consistent.
IF THE INDETERMINATE COMMITMENT SCHEME FOR SVP PATIENTS IS
ENACTED, SHOULD THE OTHER FORENSIC COMMITMENT SCHEMES BE
MADE INDETERMINATE, THEREBY AVOIDING THE CHAOS THAT COULD
ENSUE IF INDETERMINATE SVP COMMITMENTS ARE FOUND TO VIOLATE
EQUAL PROTECTION?
Equal protection concerns beg the question of whether the
Legislature should consider revising the other forensic
civil commitment provisions. If the indeterminate SVP
commitment provision in this bill is enacted, the SVP
program would be the only forensic civil commitment program
in California under which persons are indeterminately
committed.
7. SVP Parole Issues; Tolling
This bill sets out a comprehensive parole tolling provision for
any person subject to evaluation and commitment as an SVP.
Under this bill parole is continuously tolled through the
initial evaluation process, the probable cause hearing and the
period of commitment to DMH for treatment. The only time that
parole runs for a person who is evaluated or committed as an SVP
is the time that the person is under supervised conditional
release in the community.
The purpose of the parole tolling provisions in the bill is to
insure that sex offenders will not be released into the
community having avoided parole supervision. Under existing
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law, a person subject to evaluation and commitment as an SVP
will likely not be under parole supervision when he is released
into the community. Recent media reports and prior analyses
published by this Committee have noted that dozens of persons
have been released without parole supervision after they
prevailed in an SVP trial, were released after the state dropped
the case, or were not found to be SVPs by expert evaluators.
The Jessica's Law initiative and bills - AB 231 (Runner) and SB
588 (Runner) - appear to only toll parole while a person is
actually in the SVP program. Such a tolling provision would not
affect the cases that have drawn the greatest media scrutiny -
sex offenders who were evaluated as SVPs but were not committed
to the SVP program. Because SVP proceedings following a finding
of probable cause typically take many years, persons who are not
committed through the process generally are not on parole at the
conclusion of court proceedings.
Even if a person was committed to the program, their parole
period has generally run during the court process. Tolling
parole during the treatment program, as would occur under the
Jessica's Law provisions, would accomplish little or nothing if
the period of parole has run prior to commitment. Where SVPs
are released from the program unconditionally, they generally
are subject to no supervision or restrictions beyond sex
offender registration.
In summary, this bill would ensure that sex offenders who are
either evaluated or committed as SVPs will be monitored and
supervised on parole in the community.
It must be noted, however, that tolling parole for SVPs, while
not tolling parole for mentally disordered offenders and other
offenders committed because of mental disorders, likely will be
strongly challenged on equal protection grounds. Further,
because of the ban on "ex-post facto" punishment, tolling parole
will likely only apply to defendants if the crime for which they
are on parole was committed after the effective date of this
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bill. These constitutional issues are discussed below.
8. Data on SVP Program (through December 2005) - Only 8% of
Inmates with Qualifying Prior Commitments are Committed to
the SVP Program
The following chart summarizes the data concerning inmates who
have passed through the SVP screening, probable cause and
commitment process from the inception of the program through
December 2005:
-----------------------------------------------------------------
|Total screened by CDCR (with |6,368 |
|qualifying prior convictions) | |
|--------------------------------+--------------------------------|
|Eliminated after DMH individual |2,910 |
|record review | |
|--------------------------------+--------------------------------|
|Clinical evaluation that inmate |2,069 |
|is not SVP | |
|--------------------------------+--------------------------------|
|Clinical evaluation that inmate |1,307 |
|may be SVP | |
|--------------------------------+--------------------------------|
|Cases rejected by DA | 184 |
|--------------------------------+--------------------------------|
|Petition for commitment filed | 1,073 |
|by DA | |
|--------------------------------+--------------------------------|
|Judge rejects (no probable | 158 |
|cause inmate is SVP) | |
|--------------------------------+--------------------------------|
|Judge finds probable cause | 846 |
|person is SVP | |
|--------------------------------+--------------------------------|
|Defendant won trial | 132 |
|--------------------------------+--------------------------------|
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|Trials pending | 174 |
|--------------------------------+--------------------------------|
|Actually committed as SVPs | |
| |539 |
-----------------------------------------------------------------
Even under current standards, expert evaluators have only
found about 1/3 of inmates with qualifying prior
convictions have mental disorders that make it likely they
will engage in future predatory sex acts. Through the
process of petitions, probable cause hearings and trials
only about 8% of inmates with prior qualifying convictions
are actually committed to the SVP program. If the pool of
inmates subject to evaluation is greatly expanded, with
substantial attendant expense, very few additional
commitments to the SVP program will result. The percentage
of persons committed to the program, as a portion of the
total number screened, will likely fall well below the
current rate of 8%.
9. Widely Accepted Diagnostic Tool for Predicting Recidivism
- STATIC-99
The "STATIC-99," which this bill proposes to employ as a tool
for assessing the recidivism risk of registered sex offenders,
is a widely accepted diagnostic tool for predicting recidivism
by persons convicted of sex crimes. The tool was developed in
Canada and is used throughout North America and around the
world. The developers of STATIC-99 conduct ongoing research and
evaluation of the instrument. A new version - STATIC-2002 - is
being reviewed and refined at this time. The researchers
particularly seek to make the instrument both more accurate in
predicting risk and easier to apply in the field. It is likely
that employment insecurity will be emphasized as a predictor of
reoffense and that the factor concerning a lack of close
relationships will be made easier to document. This latter
change will likely help probation officers and parole agents
obtain correct data.
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Currently in California, STATIC-99 is used by CDCR in
determining which high-risk parolees should be monitored with
GPS. The STATIC-99 is an important component of the DMH review
of persons who face possible commitment as sexually violent
predators. (The governing statute requires DMH to employ and
update a standardized assessment protocol.)
The identified risk factors for recidivism identified in the
STATIC-99 are, as follows:
Young offender (18-25).
Lack of intimate partners (intimate partnerships of 2 years
or more lessen recidivism).
Non-sexual violence.
Prior convictions for non-sexual violence.
Prior sex offenses (very important predictor of future
criminal behavior).
Prior criminal sentencing - 4 or more separate sentencings.
Convictions for "non-contact" sex offense (exhibitionism,
obscene telephone calls, obscene material).
Unrelated victims - perpetrators who were not related to
their victims are more likely to re-offend.
Stranger victims - perpetrators who preyed on strangers are
more likely to reoffend. Male victims - perpetrators who
committed crimes against male victims are more likely to
reoffend.
This bill proposes a comprehensive system for ensuring that risk
assessments are conducted for all persons convicted of
registerable sex offenses, whether granted probation, in prison,
on parole, or in the community after terms of parole or
probation have ended. This system also would require that risk
assessment levels be posted on Megan's Law to further inform the
public as to the particular risk level of individual
registrants.
10. Research Concerning Sex Crime Recidivism
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In February 2004, the Department of Public Safety and Emergency
Preparedness of Canada (comparable to U.S. Dept. of Justice and
Homeland Security) published an analysis of 95 separate sexual
offender recidivism studies "involving more than 31,000 sexual
offenders and close to 2000 recidivism predictions." The study
concluded: "most sexual offenders are never reconvicted for
another sexual offence. [Sic]" The study noted a number of
factors strongly associated with recidivism and recommended that
resources be applied accordingly.
A 2003 study by the U.S. Bureau of Justice Statistics has been
widely cited as authority for assertions that sex offenders have
shocking rates of recidivism. However, the study does not make
such claims. In fact, as measured by the study, sex offenders
have lower rates of recidivism than do other offenders. The
study did make the finding that (former prison inmate) sex
offenders were more likely to commit a future sex crime than
were other former inmates, although the non-sex crime inmates
were significantly more likely to commit new crimes overall.
This is consistent with one of the basic principles underlying
the STATIC-99 that past behavior is an important predictor of
future behavior.
SHOULD CALIFORNIA EMPLOY EVIDENCE-BASED RESEARCH TO FOCUS ITS
STRATEGIES FOR CONTAINING SEX OFFENDERS AND PREVENTING FUTURE
SEX CRIMES?
ARE THERE MORE SOPHISTICATED LAW ENFORCEMENT AND CONTAINMENT
TOOLS THAT CALIFORNIA SHOULD BE TAKING ADVANTAGE OF TO FOCUS
RESOURCES ON THOSE SEX OFFENDERS MOST LIKELY TO COMMIT SEX
CRIMES?
R. Karl Hanson, the Canadian government researcher who
co-developed the STATIC-99 assessment tool, has recently
published a meta-analysis of studies of the recidivism of
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rapists as compared to child molesters. The study abstract
summarized the findings:
Study examined the relationship of age to sexual
recidivism using data from 10
follow-up studies of adult male sexual offenders
(combined sample of 4,673).
Rapists were younger than child molesters.
Recidivism risk of rapists steadily decreased with age.
Extrafamilial child molesters (molesters of
non-relatives) showed relatively little reduction in
recidivism until after the age of 50.
Recidivism rate of intrafamilial child molesters
was generally low (less than 10%), except recidivism
rate of 18-24 year old intrafamilial offenders was
comparable to that of rapists and extrafamilial child
molesters.
Risk factors for sex offenders updated by Hanson in 2005
are as follows:
Deviant Sexual Interest
Most sex offenders do not have an enduring preference
for illegal sexual activities. Offenders may act on
these less-than-preferred sexual objects/activities
(response to underage persons, forced sex) for any
number of reasons including peer pressure, impulsivity,
and opportunity. (Study, p. 12, citation omitted.)
Low Self-Control
"Low self-control refers to the tendency to respond
impulsively to short-term temptation, have little
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consideration for future consequences, and engage in
high-risk behaviours, such as drinking, driving fast,
and sexual promiscuity." Some researchers describe low
self-control as the critical factor in sexual offending.
(Study, p. 13.)
Opportunity
"Unlike problems with self-control, which should
diminish in early adulthood, and deviant sexual drives,
which should diminish in early adulthood, and deviant
sexual drives, which should diminish in later
adulthood, the opportunities for child molesting should
decrease in middle adulthood. Most child molesters
exploit a relationship of trust with a known or related
victim. The opportunities for rape, in contrast,
should decrease with age. Most rape victims are young
women known to the offender." (Study, p. 14.)
Employment Instability
Dr. Hanson's most recent research concluded that
"employment instability significantly predicted sexual
recidivism in the current review ?"
Dr. Hanson has recently published an updated
meta-analysis of relevant studies. Hanson summarized
his findings:
The results confirmed that deviant sexual interests
and antisocial orientation as important predictors
of sexual recidivism. Antisocial orientation
(e.g., unstable lifestyle, history of rule
violation) was a particularly important predictor
of violent non-sexual recidivism and general
recidivism. The study also identified a number of
new predictor variables, some of which have the
potential of being useful targets for intervention
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(e.g., sexual preoccupations, conflicts in intimate
relationships, emotional identification with
children, hostility). Actuarial risk instruments
were consistently more accurate than unguided
clinical opinions in predicting sexual, violent
non-sexual and general recidivism. (Hanson and
Morton-Bourgon, Predictors of Sexual Recidivism, an
Updated Meta-Analysis, 2005.)
Summary of Research and Suggestions
Many studies have shown that the recidivism rates for
sexual offenders is lower than that of other kinds of
criminals, even assuming a lower rate of reporting of
sex crimes. In this study, Hanson noted that
recidivism of sex offenders declined with age, "but the
overall effect was not large " Recidivism for rapists
declined with age more steeply than with child
molesters. Extrafamilial child molesters show little
decline in recidivism until after age 50. Hanson noted
that the research on the age of onset of offending
could be affected by the fact that the reporting of
intrafamilial child molesting is often delayed.
Hanson concluded: "Much of the age decline in sexual
offending could also be attributed to simple learning
effect. With experience, man can learn that sex
offending is not an effective route to happiness, or
more disturbingly, they can learn new and better ways
to avoid detection. Disentangling these various
explanations requires, of course, further research."
SHOULD THE STRATEGIES FOR CONTAINING SEX OFFENDERS BE
SHAPED BY EMPIRICAL RESEARCH, INCLUDING CONSIDERATION OF
OFFENSE AND REOFFENSE RISKS?
SHOULD RESEARCH AND EVALUATION BE CONDUCTED AND ENCOURAGED,
AND SHOULD OUR POLICIES BE ADJUSTED IN RESPONSE TO SUCH
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RESEARCH AND EVALUATION?
11. Child Pornography Statutes: Complications and Confusion
California obscenity and child pornography laws are very
difficult to read and understand. Various sections include
redundant definitions of "matter" that can constitute obscenity
or child pornography. Other sections contain redundant
descriptions of acts that constitute crimes. Major differences
among various crime and penalty provisions depend on the
addition or deletion of one word or phrase within
multi-subdivision sections and among the various sections.
Some penalty provisions are arguably inconsistent. For example,
a person convicted of simple possession of child pornography
receives the same punishment as a person who distributes or
exchanges such material with other adults, although a person who
distributes or exchanges material would seem to be the more
egregious offender. The punishment for specified forms of
commercially motivated forms of distributing child pornography
can only be determined by a very confusing application of cross
references in Section 311.2 and 311.9.
This bill eliminates many of the redundancies in the obscenity
and child pornography provisions. Arguably, one who reads the
amended provisions will have much less difficulty applying or
deciphering the law than doing so as to the current statutes.
As described in detail above, this bill also would impose a
structure of graduated penalties, with the greatest penalties
imposed for possession of explicit sexual conduct depicting
minors under the age of 16, as well as for material possessed
with the intent to distribute. The following chart depicts some
of these new penalties:
-----------------------------------------------------------------
| CRIME | CURRENT LAW | THIS BILL |
|-----------------------+-------------------+---------------------|
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|Simple possession of | | Under 16, |
|child pornography (PC | Misdemeanor | "explicit" |
| 311.11) | | sexual |
| | | conduct<10>: |
| | | felony (16/2/3) |
| | | (new) |
| | | 16 or 17, |
| | | explicit sexual |
| | | conduct: |
| | | wobbler (new) |
| | | 16 or 17, |
| | | sexual conduct, |
| | | but not |
| | | "explicit" |
| | | (311.4(d)): |
| | | misdemeanor |
| | | (same as |
| | | current law) |
| | | Under 16: |
| | | sexual conduct |
| | | but not |
| | | "explicit" |
| | | (311.4(d)): |
| | | wobbler |
| | | |
|-----------------------+-------------------+---------------------|
|Possession with intent | To person |Possession with |
---------------------------
<10> For purposes of this section, "explicit sexual conduct"
means any of the following, whether actual or simulated: sexual
intercourse, oral copulation, anal intercourse, anal oral
copulation, masturbation on bare skin, bestiality, sexual
sadism, sexual masochism, penetration of the vagina or rectum by
any object in a lewd or lascivious manner, graphic and explicit
display of the genitals or pubic or rectal area of an overtly
sexual character, or excretory functions performed in a lewd or
lascivious manner, whether or not any of the above conduct is
performed alone or between members of the same or opposite sex
or between humans and animals.
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|to distribute or | 18+: |intent to distribute |
|exchange (no | misdemeanor |or exchange to a |
|commercial purpose | To person |person of any |
|required) (PC | under 18: |age:<11> |
|311.2(c)) | felony | Under 16: |
| | (16/2/3) | "explicit" |
| | | sexual conduct: |
| | | felony (2/3/4) |
| | | (new) |
| | | 16 or 17, |
| | | "explicit" |
| | | sexual conduct: |
| | | felony |
| | | (16/2/3) (new) |
| | | 16 or 17, |
| | | sexual conduct |
| | | but not |
| | | "explicit" |
| | | (311.4(d)): |
| | | wobbler (new) |
| | | Under 16 |
| | | sexual conduct |
| | | not "explicit" |
| | | (311.4(d)): |
| | | felony (16/2/3) |
| | | 3/6/8 felony |
| | | if person is a |
| | | registered sex |
| | | offender (new) |
| | | |
|-----------------------+-------------------+---------------------|
|Employment or use of |Misdemeanor |Wobbler |
|minor for child | | |
|pornography - assist | | |
|in any act to | | |
|distribute or exchange | | |
---------------------------
<11> NOTE: Penal Code 311.2 subdivisions (c) and (d) should
be repealed, and these provisions added to Penal Code 311.11.
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|- 1st offense (PC | | |
|311.4 (a)) | | |
|-----------------------+-------------------+---------------------|
|Employment or use of |Felony 16/2/3 |Under 16, explicit |
|minor for child | |sexual conduct: |
|pornography - posing | |felony (2/3/4)<12> |
|or modeling, no | | |
|commercial purpose | | |
|reqd (PC 311.4(c)) | | |
-----------------------------------------------------------------
12. Contacting Minors with Intent to Commit a Sex Crime - Child
Luring; Police Stings
Any bill that defines a specific crime for luring of children by
adults for purposes of sex should be drafted so as to not
interfere with the ability of law enforcement to conduct stings
to catch men who seek to have sex with minors. Law enforcement
stings - in which law enforcement officers pose as children -
are relatively common and have produced many arrests and much
publicity.
This bill defines a crime under which penalties increase based
on the defendant's increasingly dangerous or egregious conduct.
This crime uses settled and court-tested language from Penal
Code Section 647.6 - annoying or molesting (without physical
contact) a child - about persons with an abnormal sexual
interest in children. The crime defined is committed where the
defendant, with the noted abnormal interest, contacts a child or
a person they think is a child with the intent to engage in
sexual activity. The penalties in the crime are higher where
the defendant actually goes to an arranged meeting.
The crime proposed by this bill can be committed where the
perpetrator goes to the residence of the victim. As many
---------------------------
<12> NOTE: The author may wish to amend Penal Code 311.2
and 311.4 to provide that prosecution under these sections shall
not preclude prosecution for human trafficking.
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members know, in recent television exposes, the adults who
intended to have sexual contact with children came to homes that
they - the adults - thought were the residences of the children.
The Jessica's Law bills (SB 588 and AB 231) and initiative
require as an element that the crime involve an actual child,
not a law enforcement officer posing as a child. As such, the
new section proposed by these measures could not be used to
prosecute those caught in law enforcement stings.
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Further, defendants arrested in stings might be able to
successfully argue that they must be prosecuted under the new
luring crime proposed by SB 588/Jessica's Law rather than for
attempted lewd conduct. A maxim of criminal law holds that a
specific law controls over a more general law covering the same
conduct. (1 Witkin & Epstein (3d Ed. 2000) Intro. to Crimes,
59-61.) A defendant who contacted a minor, or who contacted
an officer posing as a minor, for purposes of sex, arguably
could demand to be prosecuted under the section created by this
measure - as they would be much more specific than the general
attempt statute. Prosecutors could thereby lose any benefits
of existing case law concerning attempts to commit lewd
conduct.
13. Sex Crime Sentencing Changes in Jessica's Law Initiative
and This Bill (to One Strike, Habitual Sexual Offender, et
cetera Laws); Much Ado about Relatively Little - Technical
Amendments and Relatively Minor Substantive Changes
As recently amended, this bill incorporates a number of the
sentencing revisions proposed in SB 588 and the proposed
Jessica's Law initiative. While substantive, these sentencing
changes nonetheless are largely technical, and include
relatively modest expansions of sex crime definitions and
sentences. Other changes coordinate provisions within and
among sex crime sentencing schemes.
An example of a largely technical change is the addition of sex
crimes committed by credible threats to retaliate in the future
to life-term sentencing schemes. That appears to be a
relatively substantial change. However, these sentencing
schemes generally now include crimes committed by "duress" or
"menace." Because threats to retaliate in the future arguably
constitute duress or menace, threats to retaliate are included
implicitly in the current sentencing schemes. Still, a direct
inclusion of threats to retaliate as an aggravating factor,
rather than as an example of duress, may be easier to explain to
jurors. That does not mean, however, that the law has been
substantially expanded.
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14. New Life Term for Particularly Heinous Sexual Contact with a
Young Child
This bill defines a new crime, with a prison term of 25years to
life, for a person who has sexual intercourse or sodomy with a
child under the age of 10. Under current law, a life term can
be imposed for this conduct. However, a conviction for a crime
that would produce such a sentence would require a number of
steps. For example, sexual intercourse with a child under 10
could be charged as lewd conduct, a one-strike crime. Sexual
intercourse with a child would very likely cause great bodily
injury. Great bodily injury is an aggravating factor under the
one-strike law. If the jury makes a finding in a one-strike
prosecution that the defendant did cause great bodily injury,
the defendant would receive a life term. This bill proposes a
narrowly drafted crime that would not involve the elements
currently required under current law.
15. Megan's Law
This bill proposes to require the Department of Justice to
renovate the Megan's Law database. Currently, the DOJ database
is unable to support additional fields of information. This
bill would address this problem, and augment the information
contained on Megan's Law to include SVP status and risk
assessment information.
***************